Horvath v R

Court of Criminal Appeal (NSW)|2019-07-01|Before: Payne JA, Button J, Lonergan J, Hunt J

Judgment

PAYNE JA: I have read the judgment of Lonergan J in draft. I agree with the orders proposed by her Honour and with her Honour's reasons. Having regard to the graphic dash cam footage of the applicant driving over the victim and shortly thereafter reversing over him, together with the recorded commentary of the applicant, the applicant's complaints about the sentencing judge's findings of fact are demonstrated to be without merit.
I agree with Lonergan J that it is unnecessary and undesirable in the present case to determine whether the majority of the Court in Hordern v R [2019] NSWCCA 138 was correct in concluding that the "constrained approach" in sentencing appeals derived from the decision of Hunt J in R v O'Donoghue (1988) 33 A Crim R 397 was "clearly wrong" and should not be followed.
BUTTON J: I agree with the reasons and orders of Lonergan J along with the additional reasons of Payne JA. I might add that in my own assessment the dash cam footage speaks very powerfully against the success of grounds one, two, and three.
LONERGAN J: The applicant pleaded guilty in the District Court on 13 November 2017 to one count of causing grievous bodily harm to Michael Kimmorley with intent to cause grievous bodily harm on 26 January 2016 at Lalor Park. This offence is contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years imprisonment with a standard non-parole period of 7 years.
The sentencing hearing came before Hanley SC DCJ on 16 March 2018. The proceedings continued on 19 March 2018 and on that day Hanley SC DCJ sentenced the applicant to a non-parole period of 4 years commencing on 10 January 2018 to take into account pre-sentence custody, and expiring on 9 January 2022, with a balance term of 3 years to commence on 10 January 2022 and expiring on 9 January 2025. The ratio of the non-parole period to the head sentence was approximately 57%.

Facts

The Agreed Facts are extracted in full as they provide the necessary background to the offending and context to the issue of intent: "AGREED FACTS Introduction Daniel Horvath (the offender) was born [in] 1991. As at 25 January 2016 he resided [in] Noakes Parade, Lalor Park, with his father Joseph and brother David. The offender was the registered owner of motor vehicle CPV40A, a black Great Wall 4WD. The vehicle was fitted with an in car dash camera which recorded audio and video. Michael Kimmorley (the victim) was born [in] 1973. As at 25 January 2016, he resided in Oberon with his fiancé, son Braiden Kimmorley and step-daughter Paige Simpson. Peter Warwick was a close friend of the victim, and lived [in] Noakes Parade, Lalor Park ['the Warwick residence'] with his family. This included his two step-children Tahlia and Jai Bond. The house was two doors down from where the offender resided. On 25 January 2016 the victim, Paige and Braiden travelled to the Warwick residence, intending to stay overnight and celebrate Australia Day the following day. At this time there were ongoing disputes in the neighbourhood between the Horvath and Warwick families. Freeman Street incident At about 5:05pm on 26 January 2016, Paige Simpson and Jai Bond left the Australia Day celebrations at the Warwick residence with the intention of attending the Lalor Park shops situated on Freeman Street, Lalor Park. Whilst walking to the shops, they sighted the offender's vehicle 4WD driving upon Freeman Street. The vehicle, driven by the offender, stopped by Ms Simpson and Mr Bond. At the time, there were two other occupants in the vehicle: the offender's brother David Horvath and the offender's friend Stephen Chiciak. The offender has exited the vehicle and approached Mr Bond. The offender confronted Mr Bond about whether he had thrown a rock at his car. The offender returned to his vehicle where he entered the driver seat. Once inside the vehicle, the offender yelled towards Mr Bond and Ms Simpson, "Youse are fucked". During the incident Paige Simpson called Tahlia Bond and told her what was happening. As a result, the victim was told that the offender had threatened the children. Burke Road incident The victim and Peter Warwick then got into the victim's vehicle and drove to Burke Road where they located the offender's 4WD. The victim drove closely behind the offender's vehicle for a period of time. At one point the offender broke and there was a near collision between the two vehicles. Peter Warwick told the victim "look let's just go home, they are away from the kids, lets go". The victim and Mr Warwick drove away and arrived back at Noakes Parade shortly before Mr Bond and Ms Simpson returned. The victim approached Ms Simpson and spoke to her about what had occurred. At this time, the victim was standing in the middle of the road. The offenders [sic] father was standing outside his address. Cause grievous bodily harm with intent s.33(1)(b) Crimes Act 1900 The offender drove his vehicle back towards Noakes Parade. This period of driving was recorded on the dash cam. The footage will be played at sentence, but it indicates the following in summary: Whilst driving to Noakes Parade, the offender spoke to his father on the phone. A short time later, the offender said, "Alright, ready. Get the camera out. I am going to run him over. I don't care, I'm running 'em over." Both David Horvath and Stephen Chiciak were still in the vehicle at this time. Whilst driving to Noakes Parade, the offender was cutting corners and screeching the tyres as he rounded the corner. The offender drove his vehicle into Noakes Parade at speed. The victim was still in the middle of the roadway at the time. The offender initially drove his vehicle directly towards the victim whilst saying, "Do you want me to fucking go ya?" The offender put the brakes on shortly before the front of the vehicle collided with the victim at low speed hitting him towards the lower legs, and knocking him backwards. The victim punched the right hand head light of the vehicle in response and made a "come on" gesture with his hand towards the offender. The offender reversed the vehicle back a short distance. Whilst reversing, the offender said, "Come cunt come." The victim walked down the middle of the road in the direction of where the offender stopped the motor vehicle. During this time, the offender said, "Kill him? Run him over?" The victim was standing approximately four metres from the vehicle. The offender revved the motor vehicle before accelerating towards the victim. The motor vehicle collided with the victim knocking him to the ground. The vehicle then drove over the top of the victim's legs and down a slope into the front yard of [a house in] Noakes Parade. The victim remained on the ground, still conscious but in pain. The offender is heard on the dash cam saying, "I don't give a shit, I'll get locked up." Ms Simpson and Mr Warwick then crossed the road and went to the aid of the victim. The offender attempted to reverse out of the front yard of [the house in] Noakes Parade. This was unsuccessful with all four tyres spinning on the grass. The offender turned his head and was looking out the rear window of the vehicle during his attempts. Eventually, the car gained enough traction and began to reverse. Seeing this, Mr Warwick attempted to pull the victim out of the path of the vehicle but was unsuccessful. The offender reversed his motor vehicle back over the leg and foot of the victim causing the foot of the victim to be degloved. While driving away from the scene, the offender is heard saying "I don't care. I am going to kill him." and "Youse are fuckin' dead. I don't care, I'm going to gaol, I'm happy" as he drives away from the area."
Under the heading "Injuries" in the Agreed Facts the following is recorded: "The victim suffered the following injuries as a result of the collision: - Right forehead laceration; - Right temporal subgaleal haematoma; - Left comminuted tibia and fibula fractures; - Left degloving injury to foot; and - Right thigh collection. The victim underwent surgery in which his cervical spine was cleared and a cervical collar removed. The victim developed swelling over the right thigh associated with neuropathic pain upon movement. The victim's left lower limb was placed in a cast. On 27 January 2016, the victim underwent debridement and washout of the left foot and insertion of a left tibial nail. On 31 January 2016 and 3 February 2016, the victim underwent repeated washout, debridement and intra-operative application of vacuum assisted closure dressing to the left foot. Further vacuum-assisted closure dressing changes occurred on the ward. Also on 31 January 2016 and 3 February 2016, the victim underwent incision and drainage of his right thigh collection yielding frank blood. On 25 February 2016 the victim required exchange of two tibial locking screws due to displacement of these screws causing significant anterior tibia pain. On 2 March 2016 the victim s [sic] underwent split skin graft to the left foot under the care of the plastics team with nil complications. The victim was discharged from Hospital on 10 March 2016. At the time of discharge the victim had no ability to bear weight on his left lower limb."
An updated report of Dr Graham was tendered on sentence which noted the victim's recent hospital admission and ongoing problems with the left leg including pain, swelling, infection and stiffness, and that further surgery was being considered, including possibly amputation.
Also tendered was the dash cam footage from the applicant's car which was the contemporaneous source of various comments of the offender during his attack on the victim, most of which were included in the Agreed Facts bar one noticeable exception to which I will shortly come.

Applicant's subjective case

Three reports were tendered on behalf of the applicant: a forensic psychiatrist report by Dr Chew dated 31 January 2018, a report prepared by a mental health social worker Ms Muniswamy dated 14 November 2017, and a psychological report prepared by Bill Singh dated 3 March 2016. There is reference in these reports to the difficult upbringing of the applicant which reportedly involved occasional physical violence, a lot of verbal and emotional abuse and the separation of his parents when he was eight years old. There was some corroboration of this by other material tendered in his case in the form of an affidavit from his sister Corina, and a letter from his mother Rita Leonard.
Dr Chew noted a diagnosis of Generalised Anxiety Disorder with Panic Attacks and Chronic Dysthymia, and a Substance Use Disorder in remission.
The applicant provided a letter but he did not give evidence. In the letter he expressed remorse for the offence and described his difficulties growing up and his plans for the future.
A pre-sentence report tendered by the Crown from Mr Ng, Community Corrections Officer, referred to the applicant's account of his difficult upbringing.

Relevant findings of the sentencing judge

His Honour made the following relevant findings: 1. The offence was at or around the mid-range of objective seriousness, having regard to the extent of the injuries, the fact that the offending was not spontaneous, the deliberate acts of the offender in knocking the victim over on two occasions, and deliberately driving back over the victim. [1] 2. The presence of the victim's stepdaughter in the street at the time the applicant deliberately drove over the victim was an aggravating factor. [2] 3. In accordance with a concession of the Crown, a 10% discount was afforded for the late plea of guilty which was entered on the day that the proceedings were listed for trial. The sentencing judge considered that this discount was "generous" in the circumstances. [3] 4. The sentencing judge was satisfied that the applicant felt genuine empathy and remorse for the victim, noted concern at the applicant's misrepresentations to police and to the writers of psychological reports, [4] but that he was of the view that the applicant now accepts responsibility for his actions and has "some appropriate insight into his behaviour". [5] 5. The applicant has "good prospects of rehabilitation" and is unlikely to re-offend in the future. [6] 6. The applicant's mental health was a matter to be taken into account "to some degree" in mitigation, but that it was not such as to "materially reduce the applicant's moral culpability". [7] 7. Rejection of the applicant's contention that his offending was mitigated by provocation, finding that the agreed facts and the dash cam footage depicting critical parts of the offending "clearly undermine any foundation for provocation being taken into account as a significant mitigating factor". [8] 8. There are special circumstances, on the basis that the applicant would benefit from a longer period of supervision upon his release from custody. [9] 9. The professional opinions expressed in the material tendered do not elevate the applicant's deprived background to the degree such that additional leniency is warranted consistent with what the High Court said in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") nor is his moral culpability, as a result of a deprived background, substantially reduced. [10] 10. It is clear from his lack of criminal history the applicant has been able to negotiate life to the age of 24 without committing any serious offence. This confirms he has been capable of overcoming those initial difficulties successfully. [11]

Ground 1: Failing to give proper reasons for finding as a fact that the applicant deliberately drove back over the victim

The applicant submitted that the "bare finding" that the applicant, having knocked over the victim and driven past him and then deliberately driving backwards over him, is insufficient to comply with the requirements of R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 ("Olbrich") because the basis upon which the sentencing judge determined that he was satisfied beyond reasonable doubt of that deliberateness is not sufficiently reasoned or explained. The applicant submitted that the passages in which his Honour made the necessary findings are limited to: "In relation to the offender's intention I am satisfied that it is reflected in the fact that it was a very deliberate act taken by him to knock the victim over, not only once but on two occasions. … It is then that he clearly made up his mind to drive his vehicle at some considerable speed back towards the victim and knock him over again. The offence is further exacerbated by the fact the offender then, I am satisfied, deliberately drove back over the victim causing him significant injuries and probably the de-gloving of the left foot." [12]
It was submitted there is a failure in those remarks to indicate that the sentencing judge was satisfied of the necessary facts beyond reasonable doubt. There is no analysis of the evidence which he took into account for the purpose of that finding.
The applicant referred to the principles governing the adequacy of reasons on sentence in Lee v R [2016] NSWCCA 146 at [22]-[37] per Basten JA and McCallum J, with emphasis on these passages: "[25] In the criminal context, on an appeal from a trial conducted by a judge alone, Douglass v The Queen, [13] the High Court referred with approval to the explanation given by Doyle CJ in R v Keyte [14] as to why a judge is required to give reasons for a verdict following trial: "These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred [the complainant's] evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error." [26] Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real "possibility" that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied."
In response the Crown submitted that the proper approach is that the adequacy of reasons must be assessed according to the circumstances of the individual case and the extent of that duty depends on the individual circumstances: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA, with whom Clarke JA and Hope AJA agreed. The extent of the duty to give reasons is also related to the function to be served by the giving of reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ("Soulemezis").
The duty to give reasons will vary in relation to the way the case has been conducted: Soulemezis at 270B. As Mahoney JA held at 270C: "Ordinarily [the judge] may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them."
Where reasons for sentence are delivered ex tempore, (as there were here) it is necessary to bear that factor in mind when assessing the adequacy of the reasons. Johnson J stated in Currie v R [2013] NSWCCA 267 at [50]: "As Spigelman CJ observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 577 [48], the conditions under which District Court Judges give such reasons "are not such as to permit their remarks to be parsed and analysed". In R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at 180-181 [34], with the concurrence of McClellan CJ at CL and Hammerschlag J, I observed: "... it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57])."
The contention that the relevant findings were confined to the quotes extracted by the applicant is inaccurate. His Honour's relevant findings continue after the words "not only once, but on two occasions" with this: [15] "In fact, after first knocking over or knocking the victim backwards, he initially reversed a distance away."
The Crown submitted that the next passage relied on by the applicant is also only partially quoted, neglecting to include the critical finding: [16] "I am satisfied he intended to cause substantial injury and that is captured graphically by his remarks as recorded in the dash cam video." (Emphasis added.)
The sentencing judge's finding that the applicant deliberately drove back over the victim was well justified on the basis of the dash cam video and the contemporaneous accompanying remarks of the applicant recorded in that video.
Importantly, at no stage in the sentencing proceedings did the applicant's counsel contend that a finding should be made that the applicant did not deliberately drive back over the victim. Rather, in the written submissions the applicant's counsel submitted: "Then there is the act of reversal rather than staying stationary… the reversal of the car on the footage appears to have been motivated by a variety of emotions, fear at the developing situation and anger combined."
An exchange during the proceedings on sentence between his Honour and counsel then appearing for the applicant is revelatory: [17] "HIS HONOUR: You're saying this happened inadvertently? SANTISI: I'm not suggesting it was totally inadvertent, but there was a mixture of emotion and fear as well as anger at play. It can't be said to be totally arising from intent. I'm not saying that there's no intent there, but there's a variety of things at play, and trying to separate it, I don't think the mental health professionals can separate it, let alone assist anybody to try and separate it, but they are there and I'm asking your Honour to look at it in that light, that there is intent but there's also other things at play with a defective mind."
The Crown submitted that this indicates that there was no dispute that the applicant had intentionally reversed over the victim, and it was not necessary for the sentencing judge to provide extensive reasons for his finding to this effect, or to expressly state the standard of proof that was applied in reaching this finding.

Consideration

Providing incomplete extracts of a sentencing judge's reasons, omitting a key part of a relevant finding where the judge identifies with succinctness and clarity the basis for that finding - in this case the real time capturing on the dash cam video of the remarks made by the applicant as he reversed over the victim - is not helpful. The significance of the dash cam footage, which records a number of aggressive remarks made by the applicant at the precise time that he carries out certain parts of the attack on the victim, must not be underestimated.
There is no need for a sentencing judge to slavishly quote principles as basic as the need to make findings beyond reasonable doubt when they are against the interests of the applicant, or to quote extensively from Olbrich, to contextualise the findings made. The succinct concluding sentence of the relevant paragraph, which was omitted from the quote provided in the applicant's written submissions, given what is demonstrated in the dash cam material, is sufficient. It should also be borne in mind that at that point in the remarks, as well as having extracted the Agreed Facts which includes quotes of what the applicant said at different times during the two minutes of dash cam footage that underpin the finding of intention, his Honour had already undertaken a three page analysis of the whole question of intention during the overall attack. [18]
It was entirely open to the sentencing judge to conclude, to the necessary standard, that intention was present when the offender drove first at the victim to knock him over, then driving over the victim after saying words to the effect of "I'm going to run him over". Further, as found by the sentencing judge, "[i]t is clear from the impact when the victim first went under the car that there was a likelihood of substantial injury being inflicted." [19]
Relevantly to the additional injuries sustained when the applicant reversed back over the victim, the sentencing judge noted, as plainly demonstrated by the dash cam footage: [20] "When the offender reversed back over the victim he said "That's what you fucking cop.""
The reasons are succinct, clear and sufficient. Ground 1 is not made out.

Ground 2: Finding as a fact that the applicant deliberately drove back over the victim

The applicant submitted that even if it can be assumed that the sentencing judge did apply the correct test and standard of proof, his Honour was in error in making that finding because it was not reasonably open to the sentencing judge to find beyond reasonable doubt that the applicant deliberately reversed back over the victim: R v O'Donoghue (1988) 34 A Crim R 397.
The Court would have had to be persuaded that the only available inference to be drawn from the Agreed Facts combined with the dash cam footage was that the applicant deliberately drove back over the victim. The closest the evidence came to such a proposition is that while he was attempting to reverse, the applicant turned his head and was looking out the rear window of the vehicle, and then drove backwards in circumstances where he would not have been able to see precisely where the victim was.
Counsel for the applicant rejected the conclusion that stating the words "that's what you fucking cop" as the footage demonstrates a large bounce or bump in the movement of the vehicle (which could be arguably be considered to be the vehicle running back over the leg of the victim, or over the kerb, or both), is sufficient to base the necessary conclusion beyond reasonable doubt. At most, it may show recklessness as to whether, in going backwards up the driveway in that way, the applicant would drive back over the victim.
The Crown submitted that there was no error in the sentencing judge's determination that the applicant intentionally reversed over the victim. First, it was not contended by counsel then appearing on sentence that the applicant had not intentionally reversed over the victim, instead expressly conceding that the action in reversing over the victim was intentional. A sentence appeal is not the occasion for the revision and reformulation of the case presented below: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81] per Johnson J with whom McClellan CJ at CL and Rothman J agreed. The applicant should be bound by the concession that was made on his behalf by his counsel at first instance.
Second, the sentencing judge's finding that the applicant deliberately reversed over the victim was clearly correct. As observed by the sentencing judge, the driving was accompanied by particular additional comments whilst the applicant was initially driving towards the victim which were recorded, including on multiple occasions words to the effect of "I'm going to run him over" [21] and "Kill him. Run him over?" before he ran over the victim, [22] and then "I don't give a shit. I'll get locked up" before he reversed over the victim, [23] and significantly whilst he reversed over the victim, "That's what you fucking cop". [24]
The Crown submitted that at that point in the dash cam footage, at about 1 minute and 42 seconds, the applicant shouting "That's what you fucking cop" as the vehicle reversed and moved upwards over the victim was a confirmation that he indeed intended to reverse over the victim while the victim was on the ground. This conclusion is further supported by the footage 8 seconds later (at about 1 minute and 50 seconds), where as the applicant is driving away he says "I don't care, I'm gunna kill him".
The Crown submitted that the combination of the Agreed Facts, the dash cam footage and the applicant's comments recorded on it combine to leave it open for the sentencing judge to find beyond reasonable doubt that the applicant deliberately reversed over the victim.
Both counsel agreed that the basis of argument on this ground does not require the Court to address the more recent revisiting of the O'Donoghue approach in Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232 per Basten JA, Hamill J agreeing, or the further development of that analysis in Hordern v R [2019] NSWCCA 138 per Basten JA, Hamill J agreeing.

Consideration

It is important to state what the dash cam video so graphically shows. First it shows the vehicle driving at a fast speed in a residential area, screeching around corners, punctuated by aggressive shouts by the applicant, saying the words recorded in the Agreed Facts.
At the time of the initial driving of the vehicle directly towards the victim, the applicant says "Do you want me to fucking go ya?" and then puts on the brakes just before the front of the vehicle collides with the victim, hitting him and knocking him backwards.
The victim then comes forward and punches the right headlight and makes a gesture to the applicant. The applicant then reverses a short distance, saying "Come cunt come". The applicant then says, as the victim is walking down the middle of the road in the direction of his vehicle "Kill him. Run him over?".
The applicant then revs the vehicle, accelerating at speed towards the victim and collides with him, knocking him to the ground and then drives over his legs and down a slope into the front yard of a house in Noakes Parade. Then there is the sound of revving and tyres spinning and the applicant can be heard saying "I don't give a shit. I'll get locked up", then the car apparently suddenly gains traction and begins to reverse. There is a distinct bump and bounce as the applicant is reversing. The applicant says as he reverses in an aggressive tone "That's what you fucking cop". A few seconds later whilst driving away the applicant says "I don't care. I am going to kill him" and "Youse are fuckin' dead. I don't care, I'm going to gaol, I'm happy".
This material, combined with the Agreed Facts, clearly and amply supports the conclusion that it was open to the sentencing judge to find beyond reasonable doubt that the applicant deliberately reversed over the victim. Ground 2 is not made out.

Ground 3: Failing to find as a mitigating factor that the applicant was provoked by the victim

Section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that the mitigating factors to be taken into account in determining the appropriate sentence for an offence can include that the offender was provoked by the victim. The Court must take into account any mitigating factors referred to in s 21A(3) that are relevant and known to the Court: 21A(1)(b).
The applicant complains that the behaviour by the victim including tailgating the applicant's vehicle, threatening the applicant's father, failing to move from the middle of the road when the applicant drove into Noakes Parade, punching the headlight of the applicant's vehicle, and gesturing for the applicant to get out and fight after the applicant reversed away from the victim following the applicant having driven into the victim and knocked him over, comprises provocation. It was submitted that this should be read against a backdrop of ongoing hostility between the applicant's household and the household where the victim was visiting.
The standard of proof in relation to whether a mitigating factor applies is the balance of probabilities because it is potentially a factor to be taken into account in favour of the accused: Olbrich at [27].
Various findings made by the sentencing judge were not open and in particular his Honour should not have concluded that the provocative effect of the behaviour of the victim was over and not proximate in time to the final confrontation.
The sentencing judge considered and rejected submissions made on sentence on this issue: [25] "I am not satisfied the acts are sufficient to have caused him to act in the manner that he did by way of a perceived or real provocation by the victim. The victim, as I have said, was not a normal resident in the street. However, his actions earlier, identified by the offender as being provocative, that is, the tailgating of him, had been stopped by the victim when he left that area and drove back to Noakes Avenue [sic]. The offender was extremely agitated before he arrived at Noakes Avenue [sic] and the presence of the victim in the street I am not satisfied was provocative, nor were his movements towards the offender's vehicle after it had reversed away from him after initially knocking him over. The fact the victim indicated the offender should leave the car and confront him in a physical fashion was not provocative to the extent that it could excuse or give some explanation for his response which was completely inappropriate and disproportionate to anything that the victim had said or done. I am not satisfied it is a relevant mitigating factor and the offender clearly made a choice to drive over the victim and that is affirmed by the fact he did so on two occasions. The facts and the dash-cam in my view clearly undermine any foundation for provocation being taken into account as a significant mitigating factor."
The applicant argued that this reasoning demonstrates insufficient regard to other factors such as the applicant's father telephoning the applicant to tell him that "they" were outside the house mouthing off and that the victim should not have remained in the middle of the road. It was wrong of his Honour to find that this degree of challenge to the applicant could not be provocation.
It was also argued that the sentencing judge confused the basal test for provocation with a value judgement that the inappropriate and disproportionate response of the applicant was a matter to be taken into account.
The test was simply whether, on the balance of probabilities, the Court was satisfied that the applicant was provoked by the victim; the question of proportionality may affect the weight that could be placed on provocation in the process of instinctive synthesis while formulating a sentence, but should not prevent the Court from entertaining provocation as a mitigating factor simply because the applicant's response was disproportionate.
Reliance was placed upon Carroll v The Queen (2009) 254 CLR 259; [2009] HCA 13 ("Carroll") at [17]-[19]: "[17] McClellan CJ at CL, speaking for the majority of the Court of Criminal Appeal, concluded that the offence was serious and could not justify the description of falling towards the bottom of the range of objective seriousness. That conclusion was expressed against a characterisation of the facts that differed in important respects from that of the primary judge. In particular, McClellan CJ at CL described the facts in the following terms: "Although her Honour found that the deceased made a threat to get a gun, this was an idle boast which could not have justified a violent response from the respondent. Mr Criniti was apparently intoxicated and there was no suggestion that the [present appellant] was under any immediate threat. Perhaps a dismissive word in response to Mr Criniti was justified but not a violent and aggressive act with, on any view, potentially serious physical consequences. Although a head butt delivered to another's face may not be expected to lead to death, severe injury was clearly foreseeable and death at least a possibility." [18] Two features of that description are to be noted. First, while it is undeniably true that nothing the victim had said or done "justified a violent response" the appellant had never suggested that what he had done was justified. The primary judge had not held to the contrary. Rather, the primary judge had taken account of the fact that the appellant had reacted (wrongly and violently, but spontaneously) to what she had described as "some provocation" from the victim. [19] In recording the arguments advanced to the Court of Criminal Appeal on behalf of the present appellant, McClellan CJ at CL noted that emphasis was given to the prosecution's concession at first instance that the appellant had "acted in response to the deceased's provocative act in threatening to get a gun and kill the 'whole family". But although the prosecution's concession about why the appellant had acted as he had was thus noted, describing the deceased's words as "an idle boast" which perhaps justified "a dismissive word in response" focused attention upon the objective characterisation of the events to the exclusion of the primary judge's finding about what had led the appellant to act as he had. The objective characterisation of the events was never in issue; the subjective reason the appellant reacted to those events as he did was not irrelevant." (Footnotes omitted).
The applicant submitted that the sentencing judge had fallen into much the same error as identified by the High Court in Carroll because rather than asking whether the applicant was in fact provoked by the victim, and then assessing the degree and effect of the provocation if found, his Honour held that to the extent the applicant was provoked by the victim, the fact was not relevant in mitigation, because that provocation could not excuse or give some explanation for the applicant's inappropriate, disproportionate response, including the choice to drive over the victim. [26] The significance the sentencing judge placed on that approach remained unclear in the remarks on sentence and was a further error.
The Crown submitted that it was open to the sentencing judge to find that the applicant had not established that the victim's presence on the street was provocative and that the "tailgating" from earlier on was over.
Reliance was placed on the statements in R v Mendez [2002] NSWCCA 415 at [16] and R v Williams [2011] NSWSC 583 at [70] to the effect that there are cases where the offender's conduct is so disproportionate to the provocation, that it will be open to a sentencing judge to find that there should be no mitigation.

Consideration

It was well open to the sentencing judge to find that the applicant had not established provocation. [27] First, his Honour was not satisfied that the acts were sufficient to have caused the applicant to be provoked to behave in the manner he did. Second, the supposed initial provocation of tailgating had stopped and his Honour had already mentioned the asserted "threat" to the applicant's father was never the subject of any evidence. [28] Third, the applicant showed on the dash cam video that already he was extremely agitated before arriving back at Noakes Parade and fourth, his Honour was not satisfied that the things that the victim did once he was on the road in Noakes Parade, were in fact provocative.
The approach of the sentencing judge was in accordance with principle and was open to him on the evidence. No error has been shown. Ground 3 is not made out.

Ground 4: Failing to give proper consideration to the evidence of the applicant's background as a mitigating factor

Whilst a submission was not specifically made that the applicant's moral culpability was reduced because of Bugmy considerations, the written submissions referred to a background of deprivation. This background was also referred to in the report of Mr Ng, the Community Corrections Officer, in the applicant's mother's statement and in the affidavit of Corina, the applicant's sister.
Evidently the sentencing judge gave consideration to whether Bugmy applied and rejected submissions made that argued that the applicant's background was a potential mitigating factor, concluding: [29] "…professional opinions expressed in the material tendered does not elevate his deprived background so that a degree of additional leniency is warranted consistent with what the High Court identified in Bugmy ([2013] HCA 37) or that his moral culpability as a result of a deprived background is substantially reduced. It is clear from his lack of criminal history that he has been able to negotiate life to the age of 24, without committing any serious offence. This confirms he has been capable of overcoming those initial difficulties successfully."
Criticism is made that in reaching this conclusion, the sentencing judge did not set out the relevant principles to be drawn from Bugmy, such as: "[41] …In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background. [42] It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences [30] . On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case. [43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. … [46] …An issue for determination … is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation..."
It was submitted that there were three ways in which the sentencing judge failed to give proper consideration to evidence of the applicant's background as a mitigating factor. First, in requiring too much of the professional opinions to demonstrate the deprived background, second, insufficient consideration of the evidence that had been tendered in support of Bugmy considerations, and third, finding that childhood disadvantage had been "successfully overcome", given the applicant's lack of prior criminal history.
Regarding the first basis, the applicant emphasised that Bugmy does not require any "professional opinion" to "elevate" the disadvantage to a particular level, and the sentencing judge was in error in implying this in his remarks at 17.4-11.
In support of the second basis, support was sought from Miller v R [2015] NSWCCA 86 where a sentencing judge was criticised for failing to deal sufficiently with evidence tendered relevant to Bugmy considerations, and there was an apparent failure to take the applicant's personal circumstances into account. Reliance was also placed on Perkins v R [2018] NSWCCA 62 where Hoeben CJ at CL at [23] (and the other members of the Court at [85], [88] and [101]-[110]) criticised the incompleteness of the sentencing judge's dealing with the offender's childhood and neglecting to mention evidence relevant to that issue.
Criticism was made by the applicant that here a number of salient paragraphs in the pre-sentence report are not specifically referred to and therefore must have not been taken into account.
The applicant asserted that the sentencing judge has impermissibly reasoned that Bugmy cannot apply because the applicant had no criminal history before this offending. This offends those parts of Bugmy where the Court held "the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of the appropriate sentence in every case." [31]

Consideration

This ground must be dismissed. The findings in issue are simply an articulation of the sentencing judge's conclusion that the applicant's circumstances did not reach the necessary level to make out a case of deprivation under Bugmy. His Honour engaged in a lengthy analysis of the applicant's background and the available evidence about this. [32] The fact that there is no specific reference to every report or statement that touches on the issue does not mean that it has not been considered.
The context of the finding sought to be impugned about the expert evidence was a reservation being expressed by the sentencing judge about the submission made that the recent cessation by the applicant of both his medication and alcohol "may have exacerbated his underlying mental health issues in relation to depression and anxiety and is somehow causally connected to the commission of the offence." [33] His Honour rejected that submission, as was open to him to do so.
There was also a reservation expressed by the sentencing judge about the basis for Dr Chew's opinion given that it is necessarily based upon the applicant's own self-reporting of panic attacks and anxiety in circumstances where the applicant did not give evidence about those matters and so the assertions remained untested. [34]
The sentencing judge's approach to all the evidence on this issue was consistent with principle. There was also generous recognition of the applicant's subjective case reflected in the ratio of 57% between the overall sentence and the non-parole period. Ground 4 is not made out.

Orders

The orders I propose are as follows: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

Remarks on Sentence ("ROS") at 11-14.
ROS at 14.9-10.
ROS at 18.5-13.
ROS at 18.15-24.
ROS at 19.10-11.
ROS at 21.11-12.
ROS at 21.16-18.
ROS at 22.14-15.
ROS at 24.14-21.
ROS at 17.4-17.8.
ROS at 17.9-11.
ROS at 12.11-22.
[2012] HCA 34; 86 ALJR 1086 at [14].
(2000) 78 SASR 68 at 76.
ROS at 12.16-17.
ROS at 12.22-24.
Proceedings on Sentence, 19 March 2018 at T16.37-46.
ROS at 11-14.
ROS at 11.14-16.
ROS at 11.
ROS at 11.14.
ROS at 6.24-25.
ROS at 7.7-8.
ROS at 11.17.
ROS at 21.24-22.16.
ROS at 22.11-13.
ROS at 22.14-16.
ROS at 13.1-5.
ROS at 17.4-11.
R v Bugmy [2012] NSWCCA 223 at [48].
Bugmy at [42] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.
ROS at 15.5-18.2.
ROS at 17.1-3.
ROS at 17.19-23. 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: 29 November 2019

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