Ewan v R

Court of Criminal Appeal (NSW)|2019-01-30|Before: Hoeben CJ, Wright J, Fagan J

Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/223459 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 28 September 2018 Before: Buscombe DCJ File Number(s): 2017/223459

Judgment

HOEBEN CJ at CL: I agree with Wright J and the orders which he proposes.

Ground of appeal

The sole ground of appeal is: "His honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern) and the sentence is manifestly excessive".

The offence

On 15 July 2017, the victim was working at Castlereagh Car Sales in Gray Lane, Kogarah. That business was located about 100m from a white goods repair business, also in Gray Lane, operated by the applicant's father, Mr Stephen Ewan. At about 11am, the victim was in Gray Lane and was approached by the applicant's father who asked him to move a car that was in the lane. The victim told the applicant's father that it was not his car and he would have to wait for his friend, the owner of Castlereagh Car Sales, to return to the location and move it.
The applicant's father did not accept this and an argument ensued. The victim walked into the car sales yard but was followed by the applicant's father and the argument continued. During this argument, the applicant's father took hold of a piece of wood and held it in a threatening manner towards the victim. It is alleged by the victim that the applicant's father said "I'll kill you", and "I'll get my sons to fuck you up", and "I'm going to get you killed. Watch, my sons will fuck you up. Kill you." At some point, the owner of Castlereagh Car Sales arrived back at the location and managed to calm the situation down. The victim and the applicant's father shook hands and the applicant's father walked away. The police were called and the victim spoke to them briefly.
Later that day, at about 6:55pm, the victim was walking up and down Rocky Point Road in Kogarah, searching for his lost dog, close to the scene of the altercation earlier in the day. About 7:02pm, the applicant and his father drove into Gray Lane. They both met with a Mr Anthony Bek, a friend of the applicant's father. All three men entered Mr Stephen Ewan's white goods repair business through a roller door. After a few minutes, the applicant and Mr Bek came back outside. At that time, the victim was still walking on Rocky Point Road in Kogarah, past the intersection of Gray Lane. The applicant saw the victim and ran towards him. Mr Bek followed, but stopped close by.
The applicant ran up to the victim from behind, jumped into the air and hit him to the back of the head with his fist. As the victim had his back to the applicant when he was struck, he did not have an opportunity to defend himself. He fell forward, striking his face on the ground. His hands did not come up to protect his face and, as a result, his face hit the footpath heavily.
The applicant and Mr Bek ran back into Gray Lane, past the applicant's father, and continued in a southerly direction. Mr Bek had a conversation with the applicant's father, who closed the roller door of his business. The applicant and his father both left Gray Lane in the father's white Holden utility. A witness nearby remembered hearing the sound of a roller door slam and a male voice saying "He's dead, he's dead" and "Run, Gordy [or Jordy]".
Several witnesses saw the victim's face was covered in blood and there was a large amount of blood on the floor. They called 000 and rendered first-aid. Police attended and a crime scene was established. The victim was taken to St George Public Hospital for treatment. He was interviewed at the hospital on 17 July 2017. He stated that he had no recollection of being hit. He did recall the argument with the applicant's father.
CCTV footage from the neighbouring Kogarah ambulance station was collected. It showed the applicant arriving with his father, and the applicant and Mr Bek running out of view a few minutes later. It also showed the applicant running back into view, and the applicant's father shutting the roller door.
The applicant was arrested on 22 July 2017 at his home address. He declined to participate in an electronically recorded interview with police. A forensic procedure was carried out on the applicant and lacerations to 3 knuckles on his right fist were photographed.
A report was obtained from Dr Telam on 5 January 2018 in relation to the victim. His injuries, when admitted to St George Hospital after the offence, were: 1. A 3cm laceration to the forehead, which required debridement and closure under general anaesthetic; 2. A subdural haematoma as revealed in a CT scan of the brain; and 3. A non-displaced fracture of the frontal bone.
The victim's injuries were managed non-operatively and he was expected to make a full recovery.

Objective seriousness

Having set out the facts referred to above, the sentencing judge described the offence as occurring during a cowardly, unprovoked attack upon the victim involving an approach from behind and a single blow to the back of the head. The victim could not even try to defend himself. The judge accepted that there had been some planning involved, given the events earlier in the day, and the approach to the victim from behind. His Honour was of the view that it was not a spontaneous or impulsive offence.
It was also noted that the injuries suffered were significant, involving a subdural haematoma detected by a CT scan and a non-displaced fracture to the frontal bone. His Honour observed that it was simply luck for all involved that the injuries were not far more catastrophic. He rejected the Crown's submission that the victim was "vulnerable" within s 21A(2)(l) of the Crimes (Sentencing Procedure) Act.
The sentencing judge concluded that the objective seriousness of the offence was "a little below the mid-range".

The applicant's personal circumstances

The applicant did not give evidence in the sentence proceedings. There was a Pre-sentence report dated 4 September 2018 (the PSR). The applicant's case also included a psychological report of John Machlin dated 3 September 2018 as well as testimonials, which indicated that he had been a good employee in the past and, at least in terms of the knowledge the referees had of his conduct, the offence was out of character. The applicant's mother gave evidence, which essentially confirmed the content of the PSR and the psychological report. The sentencing judge accepted that evidence.
The applicant was 25 at the time of the offence and thus, while a relatively young man, was not what might be termed a "young adult offender".
As to his criminal history, the sentencing judge considered that essentially there was one relevant matter. In 2013 in the District Court, on appeal from the Local Court, the applicant received a s 9 bond for 15 months for assault occasioning actual bodily harm. Although his Honour rejected the submission that his criminal record was an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act, he found it troubling that this prior matter involved another act of violence, which appeared to have been totally unprovoked. It was held that his record did not "completely disentitle" him to some leniency, and regard was to be had to the fact that the applicant had a prior offence of violence on his record.
The PSR indicated that the applicant completed satisfactorily the supervision components of the bond in relation to his prior offence of violence. He was referred for anger management services, but for some unknown reason, was ineligible. The PSR also recorded that he was a 27-year-old male with no dependents who currently resided with his mother. His parents separated when he was four. He spent some time living with his mother and some time with his father while growing up, and returned ultimately to live with his mother. He completed year 11 at school and was initially employed as a landscaper until he commenced full-time as an apprentice carpenter, for the last two years, while attending TAFE. He admitted to the author of the PSR that he had a problem with anger management, given that this was his second offence of violence. He was willing to engage in counselling.
The PSR recorded that the applicant acknowledged that his actions were inappropriate and he was assessed as having a medium to low risk of reoffending. It is recorded that he had stable accommodation, employment and the support of his family. The applicant attributed the commission of the offence to a relationship breakdown that had occurred not long before the date of the offence.
The applicant maintained to the author of the PSR that he was acting to protect his father, that he reacted as a result of the police failing to act and that he disagreed with the facts. His mother gave evidence that her son had expressed a similar attitude to the offence to her. At the sentencing hearing, his counsel explained that what the applicant meant was that, in the morning, being the earlier time referred to in the facts, the applicant was of the view that the victim had assaulted his father. However, he was not of that view later in the evening, being the time that he attacked the victim. The sentencing judge noted, however, that such a view was consistent with the applicant acting in a vigilante way; that is, taking the law into his own hands.
The applicant also relied upon the report of John Machlin, clinical psychologist, dated 3 September 2018. The sentencing judge noted that the family background, education and employment reported in the psychologist's report were generally consistent with the PSR. In terms of the applicant's mental health, the psychologist recorded that he had described a relationship breakup two months before the offence, and that had he had seen a psychologist in relation to it. Although there had been some illegal drug use, described by the psychologist as "recreational", this had not occurred in the last five years. The applicant apparently had no issues with illegal drugs or alcohol at the time he saw Mr Machlin, and this was confirmed by his mother when she gave evidence.
The psychologist recorded that the applicant indicated that his time in custody, bail refused, was difficult and he had nightmares about returning to jail, in particular, because he wished to continue with his employment. The psychologist also recorded that the applicant expressed regret for the offence and had resumed psychological counselling since, although, as the sentencing judge noted, there appeared to have been only a limited number of sessions. Psychometric testing showed that the applicant's score for depression was severe and the scores for anxiety and stress were moderate. His Honour was of the view that those scores were primarily related to the uncertainty about the outcome of the proceedings. The psychologist considered that the applicant was prone to depression, although no DSM 5 diagnosis was made.
The testimonials referred to above were noted by the sentencing judge.
The sentencing judge referred to the evidence given by the applicant's mother and he found that she was an impressive witness and accepted her evidence. She visited the applicant regularly while he was bail refused and confirmed that he found the time in custody difficult. In addition to confirming his current employment, her evidence was that, when granted bail, he was required to report three times a week and there was a curfew in place. His Honour had regard to the strictness of those bail conditions in imposing sentence.
The sentencing judge also found that, in light of his limited criminal history and his appropriate response to supervision in the past as well as his substantial family support and history of employment, the applicant's prospects of rehabilitation were reasonable.
Given his guilty plea in the Local Court, the applicant was allowed a discount of 25%. His Honour was also prepared to accept that the applicant's remorse was genuine.
Given the applicant's reasonable prospects of rehabilitation, which would be enhanced if he had a longer time on parole than provided by the statutory ratio, and that this would be his first time in custody, the sentencing judge made a finding of special circumstances when fixing the non-parole period.

Appeal ground - the sentence was manifestly excessive

Submissions

Ms Kluss of counsel, who appeared for the applicant, noted that the sentence, after the 25% discount for the utilitarian value of the guilty plea, of 2 years and 6 months reflected a starting point of 3 years and 4 months. She submitted, in substance, that this starting point failed adequately to reflect the sentencing judge's favourable findings as to the applicant's subjective circumstances, taking into account the judge's assessment of the objective seriousness of the offence.
It was submitted that the sentencing judge had made positive findings as to the applicant's rehabilitation, his contrition and remorse, his being a relatively young man and his level of engagement with counselling and that his Honour had been impressed by and accepted the applicant's mother's evidence, including as to the applicant's domestic circumstances, employment and support. It had also been found that, although the applicant had a prior conviction for an offence of violence, this did not disentitle him to leniency. In addition, the applicant had spent some 3 months in pre-sentence custody and, while on bail, he had been the subject of conditions that curtailed his liberty. It was submitted that this had had a significant effect on the applicant. This was submitted to amount to a strong case on subjective circumstances.
Ms Kluss did not seek to challenge the finding that the objective seriousness of the offence was below mid-range. She submitted, however, that the offence involved only one blow and not a sustained attack that had been the subject of planning. Rather than being planned, she submitted it was reckless and stupid. Further, whilst medical intervention was required, the victim was noted to have made a complete recovery after the cleaning of the wound.
It was submitted that these subjective circumstances and the objective seriousness, understood in the light of matters referred to by Ms Kluss, should not have attracted a sentence of 3 years and 4 months as a starting point.
The Crown submitted that no error in exercising the discretion in sentencing had been demonstrated and no substantial wrong had occurred. The sentencing judge's finding that this was objectively a very serious offence was clearly open and could not be impugned. It was also submitted that his Honour had clearly taken into account all of the subjective circumstances identified by the applicant on this appeal and, contrary to the applicant's contention, the sentence, and in particular the non-parole period imposed, properly reflected the positive findings made by his Honour concerning the applicant's subjective case, especially in the light of the two statutory guideposts: the maximum penalty of 10 years, and the standard non-parole period of 4 years.

Principles

The principles concerning whether a sentence is manifestly excessive are well established. Those that are relevant in the present case may be summarised as follows: 1. For a sentence to be "manifestly excessive", it must be "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 200 CLR 321 at [6], [22]; [2000] HCA 54; Baladjam v R [2018] NSWCCA 304 at [259] per Bathurst CJ (Hoeben CJ at CL and Fagan J agreeing); 2. It is not sufficient that an appellate court may have a different view from the sentencing judge as to the appropriate sentence: Lowndes v The Queen (1999) 195 CLR 665 at [15]; [1999] HCA 29; Baladjam at [259]; 3. Intervention is warranted only when the difference in view is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Dinsdale at [6]; Wong v The Queen (2001) 207 CLR 584 at [58]; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [59]; [2010] HCA 45; Baladjam at [260]; 4. In other words, it must be shown that the sentence is one that was simply not open to the judge to impose in the exercise of the sentencing discretion: El-Sayed v R [2018] NSWCCA 250 at [41] per R A Hulme J (Basten JA and Hamill J agreeing).

Consideration

The applicant did not seek to challenge the sentencing judge's assessment of the objective seriousness but characterised it as "below mid-range" (par 10(b) of his written submissions). In fact, his Honour's conclusion was that "the offence in terms of its objective seriousness [was] a little below the mid-range" (emphasis added). In addition, the sentencing judge stated that "the offence here was objectively very serious". The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46] per Simpson J. Both of these assessments were clearly open on the material before the sentencing judge.
The applicable maximum penalty and the standard non-parole period do not support the conclusion that a starting point of 3 years and 4 months for an offence that is characterised as "objectively very serious" and "a little below the mid-range" is one that bespeaks error.
The fact that the offence involved only one blow and was not a sustained attack is not a basis, when taken into consideration with the subjective circumstances of the applicant, for regarding the sentence imposed or the starting point of 3 years and 4 months, as unreasonable or plainly unjust.
The sentencing judge held: "[t]his offence occurred during a cowardly, unprovoked attack upon the victim. The victim was approached from behind. The offender ran up behind the victim and jumped in the air and punched the victim to the back of the head. Clearly, the victim was unable to defend himself and fell heavily to the footpath with his face striking it."
Whilst significant medical intervention was not required and it appears the victim made a complete recovery, the sentencing judge found that "[t]he injuries suffered were significant …. It [was] simply luck for all involved that the injuries were not far more catastrophic".
As to the applicant's submission that, rather than being planned, the attack was reckless and stupid, this is inconsistent with the sentencing judge's finding that "[t]here appears to me to have been some planning involved, given the events earlier in the day and the approach of the victim from behind. It was not a spontaneous or impulsive offence".
The applicant also submitted that although he had a prior conviction for an offence of violence, the sentencing judge had held that this did not disentitle him to leniency. Implicitly, the submission was that the sentence was not consistent with the required leniency being shown. This submission should not be accepted. The sentencing judge actually held that "[h]is record does not completely disentitle him to some leniency, but I have had regard to the fact he has a prior matter of violence on his record" (emphasis added). The sentencing judge's approach was open in the circumstances and did not involve any error.
Further, the subjective circumstances relied upon by the applicant do not establish that the starting point of 3 years and 4 months was plainly unjust or that some error must have been made by the sentencing judge.
The sentencing judge made positive findings as to the applicant's rehabilitation, his contrition and remorse, his being a relatively young man and his level of engagement with counselling. His Honour also accepted the applicant's mother's evidence. These were all expressly referred to and taken into account by the sentencing judge. Similarly, the fact that the applicant had spent some 3 months in pre-sentence custody and, while on bail, he had been the subject of conditions that curtailed his liberty were also specifically considered. These matters can be seen as being appropriately reflected in the starting point of 3 years and 4 months and in the non-parole period of 1 year and 3 months, as determined by the sentencing judge.
Taking all of the matters raised by the applicant into account, it does not appear to me that the starting point of 3 years and 4 months, the actual sentence imposed after allowing the 25% discount for the guilty plea, or the non-parole period of 1 year and 3 months, involved any error of principle or were unreasonable or plainly unjust. The sentence was not manifestly excessive.
The orders I propose are as follows: 1. Grant the applicant leave to appeal. 2. Dismiss the appeal.
FAGAN J: I agree with Wright J.

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: 13 February 2019

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (1)