Kennedy v R

Court of Criminal Appeal (NSW)|2016-05-04|Before: Leeming JA, Hulme J, Hulme AJ

Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd Solicitor for Public Prosecutions File Number(s): 2014/41073 Decision under appeal Court or tribunal: District Court Date of Decision: 19 June 2015 Before: Frearson SC DCJ File Number(s): 2014/41073

Judgment

LEEMING JA: I agree with R A Hulme J.
R A HULME J: Damien James Kennedy was sentenced by his Honour Judge Frearson SC in the District Court at Port Macquarie on 19 June 2015. He had pleaded guilty to an offence of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is imprisonment for 25 years and there is also prescribed a standard non-parole period of 7 years. His Honour sentenced Mr Kennedy to imprisonment for 6 years 6 months with a non-parole period of 3 years 6 months dating from 6 April 2015.
Mr Kennedy ("the applicant") seeks leave to appeal against the severity of the sentence imposed. He relies upon four grounds of appeal: Ground 1: His Honour erred in his assessment of the objective seriousness of the offence Ground 2: His Honour erred in finding that the applicant's moral culpability was not significantly diminished Ground 3: His Honour erred in finding that there was no significant diminution of the requirement for general and specific deterrence or denunciation Ground 4: The sentence imposed was manifestly excessive

Facts

There was no dispute as to the facts as set out in the statement of facts tendered before the judge from which I draw the following. On Saturday 8 February 2014 the 15 year old victim, BA, was visiting extended family in West Kempsey. The applicant and BA were aware of each other from having lived in the same neighbourhood at times.
At about 9.30pm BA left his cousin's house with four of his friends and they walked to the vicinity of the applicant's home. There, BA and his friends taunted the applicant and challenged him to come out of his house. The applicant had formed an opinion that BA and his cousins had been throwing rocks at his aunt's house. He said it had been happening for weeks and admitted the main protagonists, to his understanding, were two 11 year old boys. BA had only arrived that day from Coffs Harbour.
The applicant came out of the house and said, "Who wants to fight?" He approached BA who saw that the applicant was holding a knife which had a blade about 10cm in length. BA said, "If you put the knife down I'll fight you".
The applicant punched BA in the left eye, splitting his eyebrow which began to bleed. BA walked away and the applicant chased him down the street. The applicant grabbed BA and hit him again. BA grabbed the applicant by the scruff of his shirt and pushed him into a fence. The applicant stabbed BA in the upper right arm with the knife and then stabbed him in the lower left side of his chest.
BA walked away holding his chest wound and spoke to someone on the street who called an ambulance. Blood was spurting from the wound. While waiting for the ambulance, BA said, "Am I going to die?"
BA was taken to hospital where he underwent surgery. He had a 6cm laceration to his chest through which his lung was visible. He had lost a large amount of blood. A chest tube was inserted to manage the large pneumothorax. His pleura had been lacerated on his left-hand diaphragm. Surgeons cauterised blood vessels to control the bleeding, stitched the lacerations to the diaphragm and chest wall, and reinserted a chest tube. BA's injuries were described as "of a serious [kind] and posed a significant life threat". BA also had the wound to his arm closed with six stitches and the laceration to his eyelid was also repaired.
The applicant was arrested that evening and taken to Kempsey Police Station where he complained of a swollen and painful hand. He agreed to participate in an interview and he confirmed to the police that he had chased BA and had punched him. He denied being armed with a knife at any time and denied stabbing BA.

Assessment of the seriousness of the offence

After referring to the facts pertaining to the offending the sentencing judge turned to explain his assessment of its objective seriousness. He said: "I do accept that the offence was precipitated by the taunting by children but whatever happened thereafter, the accused was a willing and enthusiastic participant. He was holding a knife with a ten centimetre blade. Thereafter he punched the victim, he chased the 15 year old who had clearly retreated and then what happened thereafter was he stabbed the victim twice in the areas that I have already mentioned and the injuries were indeed life threatening. Even accepting there was some provocative behaviour on the part of the group which comprised the victim, this was nevertheless a callous knifing of a 15 year old by an 18 year old and it occurred in circumstances where the 15 year old was in retreat. He had been physically dominated by an older male when attempting to retreat and this presents as a case where the 18 year old is actually bullying a 15 year old and assaulting and stabbing him. I do acknowledge that an intention to inflict grievous bodily harm is an element of the offence and cannot be double counted. Nevertheless the consequences of the offence were dire and there was a life threatening injury to the victim. There was a risk of death. The witness was killed when stabbed in the chest. This is a very serious matter. The fact that the legislature provides a maximum sentence of 25 years and the standard non-parole period is indicative of the seriousness which the legislation regards conduct that gives rise to this offence. This is a very serious example of the offence. I do accept that the stabbing itself was not pre-planned but the fact is that the offender had deliberately armed himself with a knife to confront the children. There is an element of cowardice involved in confronting children armed with a knife. It seems to me that the offence is at least at the upper end of the mid-range in terms of the objective gravity." (Emphasis added)

Personal circumstances of the applicant

The learned judge observed at the outset of his sentencing remarks that the applicant was "a very young man of 18 at the time of the offence".
As to the applicant's criminal history the judge noted that he was on a good behaviour bond for a matter of assault at the time of the index offence which he regarded (correctly) as an aggravating feature. Also in the applicant's criminal history were a number of offences of damaging or destroying property. Overall the judge regarded the record as denying to the applicant the leniency that could otherwise be available.
No oral evidence was given in the sentence proceedings but a number of reports were tendered: a Pre-Sentence Report, a Juvenile Justice report and a report by a psychologist, Mr Allan Anderson.
The judge noted that the Juvenile Justice Report prepared in May 2013 revealed that the applicant came from "a disadvantaged background of poor educational achievement and a low income household". His Honour also noted that the applicant's education had been significantly obstructed due to poorly developed social skills, anger issues, violence, bullying and intimidation in the school environment. The applicant had left school during the course of Year 6 and received no further education.
The judge remarked that "even then [presumably referring to when the Juvenile Justice report was prepared] the offender had a background of substantial disadvantage".
The Pre-Sentence Report provided further information as to the applicant's background to which the judge made some reference. He noted that the applicant had been predominantly raised by his aunt. His biological father had separated from his mother when he was between 1 and 2 years of age. His father had relocated to Queensland and there had been no contact with him. His mother formed a relationship with his stepfather some 17 years ago and despite reports of domestic violence and abuse between the parents, the applicant maintained that his mother, stepfather and younger siblings continued to be supportive of him.
The judge then observed that "the most remarkable occurrence during his upbringing was reportedly significant bullying from peers, which started in early school years and continued" to the present time. This bullying ranged from taunts to physical assaults to malicious damage to houses. His Honour remarked: "It seems his history of having been bullied turned him into a bully on this occasion. He became an aggressive person and someone very easy to ignite apparently and ignite in a most inappropriate way."
The judge noted that the applicant had a period of psychological counselling coupled with antidepressant medication but ceased both about five years ago.
The Pre-Sentence Report included that the applicant accepted some responsibility for his actions but some aspects of his account to the Community Corrections officer did not accord with the facts. He admitted that he carried a knife around for protection.
The judge referred to the psychologist's report as including more information about the applicant's background. His Honour accepted that the applicant had "an unhappy childhood".
The judge rejected the psychologist's conclusion that the applicant had a relatively insignificant alcohol and drug history. His Honour described the applicant's reported daily use of cannabis as "a significant problem" and found that it likely exacerbated his fragile mental health state.
Mr Anderson suggested some diagnoses of psychiatric conditions. These were based upon a Personality Assessment Inventory that he said did not provide definitive diagnoses but rather "suggest areas of mental health concern". The judge regarded this as "highly speculative". He said (while apparently part reading from the report): "Well it is not clear to me what he is actually suffering from, but I do accept that he was suffering from a form of depression, a form of borderline personality disorder and an antisocial personality disorder. I do accept he was hyper vigilant and aggressive and paranoid. … I do accept he was depressed and I do accept he suffers from paranoia. He has a negative self-view, which I accept. As an indication of antisocial behaviours, 'A very aggressive attitude to people in general', I do accept that."
In relation to the circumstances giving rise to the offence, Mr Anderson suggested: "In essence he had to protect himself from people who were attacking him". His Honour responded: "I do not accept that. Looking at the facts of this case, he was not protecting himself, he was having a fight with a younger boy who was retreating and he stabbed him."
The judge also rejected Dr Anderson's assessment that the applicant had shown remorse: "There is nothing I can see in the evidence that supports any conclusion that he has remorse". He did, however, accept Mr Anderson's assessment that the applicant "has had an unfortunate childhood and adolescence" and that "he was clearly teased and harassed for the whole of his young life".
Some other aspects of the judge's treatment of the applicant's background and personal circumstances will be referred to later in the context of Grounds 2 and 3.

Ground 1 - error in assessment of objective seriousness of offence

As noted earlier, the judge's finding was that the offence fell into "at least the upper end of the mid-range" of objective seriousness. It was submitted that this assessment did not take into account "the provocation presented by the victim and four friends who taunted the applicant and challenged him to come out of his house". Provocation is a statutory mitigating factor (s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and the judge was in error in not treating it as such.
I have extracted in full (at [11]) the judge's reasoning that led to his conclusion. He accepted that "the offence was precipitated by the taunting by children" and that "there was some provocative behaviour". However, he found that there were some countervailing considerations which he explained in that passage and I will not repeat.
The written submissions by counsel for the applicant refer to a question as to whether a subjective state of mind (in this instance, provocation) is relevant to an assessment of the objective seriousness of an offence: e.g. Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. There is no need to engage with the issue because I am satisfied that the judge did factor into his assessment the provocation and taunting of the applicant. The simple fact is that he did not find it to be of the same significance as is contended. That was a finding that was open to his Honour.
Another basis upon which the judge's finding as to objective seriousness was challenged concerned the extent of the injury sustained by the victim. It was accepted that the stabbing to the victim's torso was serious but "there was no evidence before the Court as to any sequelae from the injury". Further, reference was made to the judge's statement "the witness was killed when stabbed in the chest" and it was argued that his Honour "clearly mistook the facts".
There is no merit in these arguments. As to the first point, it was open to the judge to make the assessment of objective seriousness at the level he did where the applicant thrust a knife into the chest of a 15 year old boy causing life threatening injury that required surgical intervention to save his life. As to the second point, either the transcript of his Honour's remarks is incorrect or he misspoke. It is, quite frankly, ludicrous to think that he assessed the seriousness of the offence on the basis that the victim had been killed. His Honour either said, or at least meant, that the victim could have been killed. That was consistent with the unchallenged evidence in the statement of facts (signed by the applicant) that the victim's injuries were "serious and posed a significant life threat".
The assessment of the seriousness of an offence is a matter for sentencing judges and not a matter that this Court will readily undertake in usurpation of that function: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J, as her Honour then was).
This ground must be rejected.

Ground 2 - moral culpability not significantly diminished

Ground 3 - no significant diminution of requirement or general and specific deterrence or denunciation

It is convenient to deal with these grounds together. They arise from the following passage of the sentencing remarks (which followed his Honour's review of the various reports): "Now I have read that out in some detail because it is difficult to work out in any particular case what impact the mental functioning has on the particular crime and whether it provides any amelioration in terms of the moral culpability or the sentence or both and these matters depend on the particular facts and circumstances. I do accept that the offender was paranoid. He was depressed, he was anxious, he was antisocial, he was aggressive, he was hyper vigilant. I accept all of that and I do accept that his condition and his background made him less disciplined in terms of emotional control than ordinary people in his situation. He was a bit of a powder keg and highly likely to react to any provocative behaviour and react in a completely unreasonable way. One consideration is whether there is anything to preclude a very substantial appreciation of the gravity and consequences of his conduct when he pursued a 15 year old and stabbed him in the chest. I conclude there is not anything to preclude that. As I said, I do accept that he would have had less control than others. He is certainly not inhibited in making reasoned decisions. He was aggressive and antisocial and easy to anger and he said he carried a knife around for protection, and he did that when he was on a bond. It seems to be that his moral culpability is not significantly diminished in the present circumstances and of course a countervailing consideration is always that his antisocial personality and aggression do make him a danger to the community, because he is likely to snap when he is provoked and snap completely inappropriately. I do not conclude this is a case where there would be any diminution of the requirements for general deterrence or specific deterrence or denunciation. I am required to take into account for the purposes of sentencing the one step process and that includes providing adequate punishment, denouncing the conduct, recognising the harm to the victim, protecting the community from people who do these things [and] to rehabilitate the offender." (The portions I have emphasised reflect the grounds of appeal)
The applicant submitted that his Honour's finding that "his moral culpability is not significantly diminished in the present circumstances" was untenable in the light of his Honour's acceptance that the applicant had a "background of substantial disadvantage" and his acknowledgement of the various other negative aspects of his upbringing. I have alluded to the substance of these matters earlier in relation to the applicant's personal circumstances.
It was submitted that the applicant bore "significantly less moral culpability for his actions than a person with the benefit of a normal or stable background and without his psychological abnormalities".
It may be accepted quite readily, as Simpson J (as her Honour then was) said in R v Millwood [2012] NSWCCA 2 at [69], that an offender who has the start in life that the applicant had would not ordinarily bear equal moral responsibility with one who has had a "normal" or "advantaged" upbringing. (Her Honour quickly added that she was not saying that such a person bears no moral responsibility.) But the problem with the applicant's submissions is that they rely upon some aspects of his personal circumstances to the exclusion of others. It was necessary in this case for the sentencing judge to strike a balance between a number of competing considerations. That was his task and, again, one which this Court should not readily usurp. It is notable that the findings that his Honour made which were adverse to the applicant are not challenged; they are simply not mentioned.
Moreover, to say that the applicant's moral culpability was not "significantly" diminished is not to say that it was not diminished at all. It was a question of degree, or weight; an assessment quintessentially one for the primary judge. "The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined": R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ).
In relation to Ground 3 it was submitted that "the applicant, as a result of his global difficulties and issues, was suffering from a mental disorder or abnormality such that general deterrence should have been given less weight in the sentencing exercise because he was not a suitable medium for making an example to others". Muldrock v The Queen at [53] was cited.
The problem with this submission is that even if it be assumed that the applicant was suffering from a "mental disorder or abnormality" (the judge accepted only some aspects pointing towards such a conclusion) this was another topic upon which there were countervailing considerations.
The judge concluded that the applicant had a "very substantial appreciation of the gravity and consequences of his conduct when he pursued a 15 year old and stabbed him in the chest". Hunt CJ at CL said in R v Wright (1997) 93 A Crim R 48 at 51 that where an "the offender [with a mental disorder or abnormality] acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation [of the requirement of general deterrence] need not be great".

Ground 4 - manifest excess

The sole written submission in support of this ground was: "Given the objective and subjective features of the applicant's case, the sentence imposed was manifestly excessive."
At the hearing it was emphasised that the applicant had only just turned 18 at the time of the offence. Counsel described him as "particularly vulnerable and psychologically fragile". She submitted that even if error was not established in relation to Ground 1, this Court should take provocation into account as a mitigating factor in assessing whether the sentence is erroneously excessive.
Senior counsel for the Crown correctly reminded the Court that for the applicant to make good this ground it was necessary to establish that the sentence imposed was unreasonable or plainly unjust. (Authority for the proposition is too well-known to cite.) Reference was also made to the statutory guideposts of the maximum penalty of 25 years and the standard non-parole period of 7 years.
The offence was assessed as being in the "upper mid-range" of objective seriousness. The sentence was one of 6 years 6 months after the application of a 10 per cent discount for the applicant's plea of guilty. The starting point was about 7 years.
The non-parole period is 3 years 6 months, about 54 per cent of the head sentence. If the judge had not made a finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act, the non-parole period would have been in the order of 4 years 10 months. The reasons for reducing the non-parole period were expressed as follows: "I do propose to find special circumstances because of his fragile mental condition, his age, it is the first time in custody. He will need a lot of help when he gets out and a lot of supervision to control or give him the mechanisms to control his anger and to become more disciplined in relation to violence. "
The problem with the applicant's "provocation" argument is that there is no evidence of any loss of self-control. Nevertheless, the judge accepted that the incident was precipitated by taunting and provocative behaviour. After the initial altercation the victim walked away after he had received a punch to the eye. Rather than leaving it at that, the applicant, armed with a knife, pursued and caught up to him and continued his assault, culminating in him twice stabbing the boy.
Making full allowance for those subjective matters that stood in the applicant's favour, whilst also acknowledging those that did not, and respecting the two statutory guideposts in the light of the assessment of the seriousness of the offence, I cannot conclude that the sentence is unreasonable or unjust.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
RS HULME AJ: I agree with the orders proposed by R A Hulme J and subject to the following remarks, with his Honour's reason.
I take the view that the Applicant's moral culpability for his actions was significantly less than it would have been had he had a normal and stable background and did not suffer from psychological abnormalities. Thus in my view the second ground of appeal is established.
However I also accept that the Applicant must have had substantial appreciation of the gravity and consequences of his conduct when he pursued a 15 years old and stabbed him in the chest. Stabbing someone in the chest is so obviously dangerous that the Applicant could not but have known of that fact. As an 18 year old he could not but have also known what a knife with a 10 cm blade could do - a fact amply demonstrated by the Applicant as he said carrying the knife for protection.
His Honour had to balance these and other considerations to which he referred including that the Applicant was depressed, has an anti-social personality and is aggressive - factors which make him a danger to the community.
His Honour concluded that in its objective gravity the Applicant's offence was at least at the upper end of the mid-range. Certainly it was within the mid-range, a fact that makes particularly relevant as a guidepost the standard non-parole period of 7 years. Of course given that the Applicant had pleaded guilty and the standard non-parole period takes no account of subjective factors it was not to be applied mechanically but it clearly was not.
The sentence of 6 years and 6 months including a non-parole period of 3 years and 6 months falls well short of the statutory guides of 25 years and a non-parole period of 7 years, even making allowance for the 10% his Honour allowed for the Applicant's plea. I am satisfied that, even taking the view I have concerning the Applicant's moral culpability, and bearing in mind the manner in which this Court should approach an appeal where it finds error - Kentwell v R [2014] HCA37; 252 CLR 601 - the sentence imposed was appropriate.

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 June 2016

Crimes Act 1900(NSW)s 33(1)

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