Gillon v Regina

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

Leslie v Regina [2009] NSWCCA 203 R v Drew [2000] NSWCCA 384 R v Mills (2005) 154 A Crim R 40 CASES CITED : R v Newman [2004] NSWCCA 102 Regina v Buddle [2005] NSWCCA 82 Regina v Fidow [2004] NSWCCA 172 Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525

PARTIES: Curtis GILLON (Applicant) Regina (Respondent)

COUNSEL: T Gartelmann (Applicant) M Grogan (Respondent)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)

• 11 - IN THE COURT OF CRIMINAL APPEAL CCA 2008/12564

McCLELLAN CJ at CL HOWIE J HISLOP J

26 November 2009 Curtis GILLON v Regina Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J:

On 25 July 2008, the applicant pleaded guilty to recklessly causing grievous bodily harm contrary to the Crimes Act 1900, s 35(2). The maximum penalty applicable for the offence is 10 years imprisonment. A standard non-parole period of 4 years imprisonment is applicable. 4 On 14 November 2008, the applicant was sentenced in the District Court to a non-parole period of 3 years imprisonment to commence on 6 February 2008 and expire on 5 February 2011, with a balance of term of 1 year to commence on 6 February 2011 and expire on 5 February 2012. 5 His Honour set out the agreed facts in his remarks on sentence as follows: "On the evening of Tuesday 5 February 2008 the victim, Barry Hines, was drinking with friends at 1 Yanda Street, Bourke. This was the home of Leonie Ellwood who was the cousin of [the applicant] and the de facto partner of the victim. The victim and Ellwood have been in a de facto relationship for approximately three years. Present at the home were the victim, [the applicant], Leonie Ellwood, Lola Hunter and her sister, Vanessa Hunter. The group who were all well known to each other began consuming alcohol earlier in the day and by the evening all persons with the exception of Lola Hunter were heavily intoxicated. Around 10.15 pm the victim was seated at a table in the dining room of the premises with Leonie Ellwood, who was having some dinner. At about this time the victim struck Leonie Ellwood with a backhanded swing, knocking her from her chair to the ground. [The applicant] immediately became loud and aggressive and yelled at the victim 'I am sick of you hitting my sister'. [The applicant] then started punching the victim to the head and face and the victim fell onto the floor near the doorway of the first bedroom. Once on the floor [the applicant] kicked the offender to the head and body numerous times. The victim did not retaliate but covered his head with his arms. At this point Leonie Ellwood lay over the victim to protect him from further assault. At the same time she said 'Curtis stop'. [The applicant] did stop his attack and walked out the front door of the premises … The victim was transported [by ambulance] to Bourke Hospital, then to the high dependency unit at Dubbo Hospital and then on 8 February 2008 to Nepean Hospital in Sydney." 6 His Honour recorded that the victim sustained the following injuries in the attack:

Multiple facial fractures on the left side; Severe fractures of the bi-lateral mandible (mandible was grossly displaced and his bite was abnormal; jaw was deviated to the left); Fracture of the nasal bone; Fracture of the left orbital floor, left posterior orbital wall, left maxilla and left zygoma; Gross swelling of the left side of the face; Sub-conjunctival haemorrhage of the left eye; Numbness over the left cheek and the distribution of the maxillary branch of the left fifth cranial nerve; Swollen testicle; Multiple left sided rib fractures, five in number; Left sided chest pneumothorax (the victim arrived at the Nepean Hospital with an intercostal chest drain in situ). 7 The victim was discharged from hospital on 15 February 2008 with follow up facial surgery anticipated to be over 10 hours in duration to be performed at a later date. The victim required ongoing medical review. 8 The applicant has sought leave to appeal against sentence on the following grounds: "1. The sentencing judge erred in failing to provide reasons for departing from the standard non-parole period.

2. The sentencing judge erred in failing properly to assess the objective seriousness of the offence in accordance with the principles applicable in sentencing for an offence to which a standard non-parole period applies.

3. The sentencing judge erred in failing to consider whether 'special circumstances' existed."

Subjective matters 9 The applicant is an Aboriginal person born in 1970. He grew up on an Aboriginal mission reserve. He gave evidence that as a child, he witnessed violence and the effects of alcohol on a regular basis. He left school at the age of 15 years 6 months and thereafter did casual work as an agricultural labourer. He said he had 4 significant relationships over the years, resulting in 7 children, the youngest of whom was 8 years of age. He was drinking by the time he was 16 or 17 and for a period of about a year before the offence he was drinking a flagon of port most days of the week. He used cannabis until 1994 and heroin until 2003, but continued to abuse alcohol until arrested for the subject offence. 10 The applicant has a significant history of criminal offences, including a number of offences of a similar nature to that with which he was charged. His Honour summarised the criminal history as follows: "There are two prior convictions for offences contrary to s 35, one was in 1991 and the other in 2000. As well as that there are a number of offences of stealing and common assault. There is also a conviction for an offence committed on 26 August 2003 of assault with intent to rob armed with an offensive weapon for which [the applicant] received a four year prison sentence with a two year three months non-parole period, commencing from 26 August 2003. There is also one offence of using violence to intimidate, to compel and as I said several offences of common assault and in 2000 assault occasioning actual bodily harm."

On a number of occasions, his parole was revoked. 11 His Honour found there was no evidence of any genuine remorse or contrition by the applicant and that there was a failure by him to acknowledge the seriousness of what he had done.

Objective matters 12 Counsel for the applicant at the sentencing hearing contended that the Court should find that the offence was committed in three stages, namely:

(a) when the applicant rushed to Ms Ellwood's aid and beat the victim with his fists and once the victim had fallen to the floor, kicked him; (b) when he continued to beat and kick the victim in alleged fear that the victim, whom he said was considerably larger than him and had a record of violence, would retaliate; and (c) when he continued to beat and kick the victim after the risk to Ms Ellwood and himself had passed. 13 It was submitted on the sentencing hearing that: "Further not all the injuries were the result of unlawful blows as submitted. Those received by [the victim] in the first and second stages were delivered lawfully by [the applicant]. It is open to the court to infer that it is likely that the harder blows were delivered earlier in the incident tapering off to lesser blows towards the end." 14 His Honour, who had the advantage of seeing the applicant give evidence, rejected this submission. He found that the three stage approach was "an entirely inappropriate way of looking at what occurred and totally unrealistic". His Honour considered that the applicant was responsible for all of the injuries, none of which needed to have been inflicted. His Honour held that it was clear that while there was a "trigger" for the event in the victim striking Ms Ellwood, the applicant: "… did not seek to intervene between Ms Ellwood and the victim. He did not seek to dissuade the victim from any further action towards Ms Ellwood. He made no effort to contact the police as an alternative. Instead it appears from the very first words that he said 'I am sick of you hitting my sister' after which he immediately launched into what I have previously described as a vicious and cowardly attack, that he was exercising his own form of retributive justice on the basis of what he had been told about previous assaults by the victim on Ms Ellwood." 15 His Honour concluded that in terms of the objective seriousness of the offence, this was "indeed a mid range offence". 16 His Honour noted that the victim was born in 1967 and that to the extent that his criminal record disclosed anything, it certainly disclosed a propensity for some violence, but from the penalties imposed, it would not appear to be of the most serious character. 17 His Honour accepted that the attack was not pre-planned and that it was a spur of the moment matter, triggered by the victim's violence towards Ms Ellwood, although none of what occurred thereafter was justified in any way. His Honour allowed a full discount of 25 per cent for the plea. He noted that there was a short form of pre-sentence report from the Probation and Parole Service which indicated that: "… any parole or other community supervision order should be specifically a condition for [the applicant] to enter and complete a suitable medium to long term residential rehabilitation service as soon as can be arranged."

In his evidence, the applicant said that he was prepared to do so. 18 His Honour concluded: "… in the circumstances a period of full-time imprisonment is warranted and both specific and general deterrence are important factors in relation to a matter such as this and particularly specific deterrence in circumstances where the offender has a previous record for similar offences as well as other offences of violence."

Ground 1: The sentencing judge erred in failing to provide reasons for departing from the standard non-parole period 19 His Honour noted a standard non-parole period applied to an offence under s 35(2). The non-parole component of the sentence imposed was less than the standard non-parole period. However, his Honour did not record his reasons for departing from the standard non-parole period. The applicant submitted, correctly, that the failure to provide reasons for the departure from the standard non-parole period was an error in that his Honour failed to comply with the Crimes (Sentencing Procedure) Act 1999, s 54B(4), which, it has been held, applies notwithstanding a plea of guilty: R v Mills (2005) 154 A Crim R 40 at [50]. It was submitted this failure indicated that his Honour had not given adequate consideration to the reasons that warranted the departure. 20 However, a failure to comply with s 54B(4) does not invalidate the sentence: s 54B(5). Whether the failure to comply indicated that the sentencing judge failed to give adequate consideration to the reasons that warranted that departure is dependant upon examination of the other grounds of appeal.

Ground 2: The sentencing judge erred in failing properly to assess the objective seriousness of the offence in accordance with the principles applicable in sentencing for an offence to which a standard non-parole period applies 21 The applicant submitted that his Honour's assessment of the objective seriousness of the offence as "mid range" was erroneous, in that his Honour failed to adequately consider the fact that the offence was committed in response to provocation, or did not articulate its significance in the assessment of the objective seriousness of the offence. 22 His Honour accepted that the victim's striking of the applicant's cousin was the triggering event. The onus was on the applicant to establish he acted under provocation. However, the presence of provocation does not excuse the conduct, nor render inapplicable principles of personal and general deterrence: Regina v Buddle [2005] NSWCCA 82. The Crimes (Sentencing Procedure) Act, s 21A(5) provides that the existence of a mitigating factor does not invariably necessitate a reduction in sentence. 23 His Honour rejected the submission that the applicant's conduct could be dissected into three components. It was open to his Honour to do so. Similarly, it was open to him to characterise the attack as "vicious" and "retributive". His Honour's comments indicate that he considered provocation, but did not accept that it mitigated the offence having regard to the nature of the attack and the extensive injuries. 24 The applicant also submitted that his Honour, having recounted the facts of the offence and determined the objective seriousness of the offence relative to the mid range, subsequently noted that the offence was unplanned and occurred "on the spur of the moment". It appears that this aspect of the offence was considered after the determination of its objective seriousness relative to the mid range. The fact that the offence was unplanned was a matter relevant to the assessment of the objective seriousness of the offence relative to the mid range. Accordingly, it was a matter that ought to have been considered as part of the assessment and prior to the determination that the objective seriousness of the offence was mid range. 25 His Honour recorded his conclusion as to the objective seriousness of the offence in the course of a discussion of objective factors. The factors recounted in the remarks on sentence made it clear that his Honour was well aware of the circumstances in which the offence occurred. There was no suggestion that the offence was planned and it is clear from a fair reading of his Honour's remarks on sentence that his Honour did not fail to take that factor into account in assessing the objective seriousness of the offence.

Ground 3: The sentencing judge erred in failing to consider whether 'special circumstances' existed 26 His Honour did not expressly refer to the question of whether "special circumstances" existed. 27 The applicant submitted that because of his difficulties with substance abuse, he required a longer period of supervision than the 12 months that arose from a strict application of the Crimes (Sentencing Procedure) Act, s 44. His Honour was aware of the suggestion that the applicant should participate in a "medium to long term residential rehabilitation" programme and referred to it in his remarks on sentence. 28 However, lengthy periods under supervision in the past had not achieved any obvious change in the applicant's apparent propensity to abuse alcohol. There was nothing in the applicant's prior record, or in his evidence before his Honour, which suggested any positive basis for finding that an extended period of supervision was likely to reap any benefits. His Honour was not obliged to give reasons for not finding special circumstances. 29 It was also submitted on behalf of the applicant that his: "… subjective circumstances, including his upbringing in an Aboriginal mission reserve, involving an early exposure to violence in conjunction with alcohol abuse, manifesting in violence and alcohol abuse in adulthood and reflected in the circumstances of the present offence, give relevance to the Fernando [(1992) 76 A Crim R 58 at pp 62-63 per Wood J] principles. The applicant's extensive substance abuse history warrants consideration of special circumstances to allow an extended period of supervision on parole in order to facilitate rehabilitation." 30 However, it is not every case of deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry that calls for the special approach adopted in Fernando (see R v Newman [2004] NSWCCA 102 per Howie J at [61]) and the mitigating effect of being an Aboriginal person loses much of its force where the offender had committed similar serious offences in the past (see R v Drew [2000] NSWCCA 384 per Newman J at [21]). 31 As Spigelman CJ said in Regina v Fidow [2004] NSWCCA 172, at [22]: "Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion." 32 In my opinion, the applicant has not demonstrated that his Honour erred in not finding special circumstances. 33 The applicant contended that taking into account and giving appropriate weight to all matters relevant to the assessment of the objective circumstances of the offence, the offence may properly be assessed as below the mid range of objective seriousness for an offence of its kind. The utilitarian value of the plea was significant and the discount of 25 per cent allowed for it appropriate. Taking into account the objective circumstances of the applicant, it was submitted that reasons existed warranting a greater departure from the standard non-parole period. 34 In Leslie v Regina [2009] NSWCCA 203, at [44], Hoeben J (with whom the other members of the Court agreed) held: "This Court will not normally interfere with a sentencing judge's findings in respect of the objective seriousness of an offence: Mulato v Regina [2006] NSWCCA 282. In that case Spigelman CJ said: '[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open …'" 35 In my opinion, his Honour's determination of the objective seriousness of the offence relative to the mid range was open to him, particularly having regard to the injuries inflicted upon the victim. Indeed, counsel for the applicant at the sentencing hearing submitted: "… this is a serious breach of the law, but I would suggest for the reasons that I have just put to you that this is a case that falls not quite at the mid point. In terms again of course of the injuries, if you just took those as a reference point, there could be no argument that this is certainly a mid range case. But what I am putting to the court is that not all of the injuries can be said to be culpable for and accordingly that brings it down below the mid range case in terms of culpability, as distinct from the injuries sustained." 36 In my opinion, his Honour did not err in his determination of the objective seriousness of the case.

Conclusion 37 The Court's powers in respect of an appeal on sentence are prescribed by the Criminal Appeal Act 1912, s 6(3). The Court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed: Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525 at [79]. 38 In my opinion, material error has not been established. Nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

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.