Kingsley v R

Court of Criminal Appeal (NSW)|2018-09-12|Before: Leeming JA, McCallum J, Bellew J, Callum J

Judgment

LEEMING JA: I agree with McCallum J.
McCALLUM J: Luke Kingsley seeks leave to appeal against the sentence imposed upon him in the District Court on 16 June 2017 after he pleaded guilty to two counts of reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 10 years. A standard non-parole period of 4 years is prescribed for the offence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, item 4C of the Table).
The reckless wounding charges were alternative counts on an indictment that contained two primary counts of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act (an offence which carries a maximum penalty of 25 years and a standard non-parole period of 7 years). The applicant's late pleas to the alternative counts, entered in the District Court, were accepted in full satisfaction of the indictment. The applicant was allowed a discount of 10% for the utilitarian value of the pleas. He was sentenced to an aggregate sentence of imprisonment for 6 years with a non-parole period of 4 years commencing on 18 August 2015.
The structure of the sentence reflects a departure from the statutory ratio of the balance of term to the non-parole period which the sentencing judge found was warranted by his finding that the applicant would require extended supervision to assist him to re-enter the community having regard to the nature of the offences and aspects of the applicant's subjective case.
The application for leave to appeal was filed out of time. A notice of intention to appeal was filed within time on 4 July 2017 and extended to 30 June 2018. However, the application for leave to appeal was not filed until 2 August 2018. Accordingly, the applicant requires an extension of the time within which to bring the application for leave to appeal. That is opposed by the Crown.

Circumstances of the offences

The applicant was sentenced by the same judge and at the same time as his two co-offenders, Roland Reardon and Joel Errington. The Crown relied on a statement of agreed facts, the contents of which may be summarised as follows.
On 16 June 2015, the victim, Steven Spiteri, was visiting Reardon. He had met Reardon in May of that year through a mutual friend. A number of other people were also present at Reardon's place. Reardon had arranged to obtain a quantity of "ice" (methylamphetamine), for which he was due to pay at a later time, but he fell asleep. Spiteri and two other persons (Jackie and Kim) went to collect the ice which they then used, at Jackie's place. At around midnight, Spiteri fell asleep on Jackie's lounge.
In the early hours of 17 June 2015, Spiteri woke up to find Reardon, Reardon's girlfriend (Ricky) and Kim in the lounge room. Reardon was asking about his ice and became very angry when no one would tell him what had happened to it. Spiteri was scared by that confrontation and remained at home over the following few days. He attempted to contact Reardon by telephone and attended Reardon's premises but was unable to speak to him.
On 23 June 2015, Spiteri saw Reardon at a bar. He approached Reardon and asked, "are we alright?" to which Reardon replied, "we gotta talk later".
At around 6am on 25 June 2018, Spiteri and his flatmate, Jason Lang, were sitting on the lounge when they heard the side gate open. Spiteri went to the front door and found the applicant and Errington standing at the door. The applicant and Errington walked inside Spiteri's lounge room. The applicant pushed Spiteri down onto the lounge and said, "you robbed me mate, we've got the story now". Spiteri replied, "check the story, it's not true". The applicant sat down on the lounge and there was a short conversation.
Suddenly the applicant and Errington attacked Spiteri. The applicant was armed with a straight-bladed knife and Errington was armed with a sharp object with a serrated edge. The applicant used the butt of his knife to hit Spiteri in the head, which immediately started to bleed. Spiteri was continuously hit and was pushed down from the lounge and onto the floor.
Lang attempted to intervene but Errington grabbed him by the front of his jumper and pushed him away, saying "it's got nothing to do with you". Lang heard the applicant and Errington demanding money from Spiteri. Lang ran out of the house.
The applicant and Errington were yelling "you fucken' liar" while they took turns to strike Spiteri in the head and ears. Spiteri felt his right forearm being cut and it started to bleed heavily. Spiteri used his left arm to hold his right forearm in an attempt to stop the bleeding. Errington seemed to back off at that stage but the applicant kicked Spiteri hard in the legs.
Reardon then entered Spiteri's premises. He was holding a straight-bladed knife. He looked Spiteri straight in the eyes, leant down and stabbed him through the top of his left foot, causing it to bleed. Reardon said "where's the fucking money and where is the shit?". Spiteri tried to explain that he did not have anything. Reardon wiped his knife on a blanket on the lounge and tucked the knife away. Reardon and the applicant said to Spiteri "don't fucken' tell the police anything or you know what will happen".
Reardon, the applicant and Errington then ransacked Spiteri's bedroom while Spiteri lay on the floor. They left about five minutes later.
Spiteri went to see his father. His father took him to hospital where he received medical treatment and underwent surgery. Staff at the hospital notified police, who attended shortly afterwards and took a statement from Spiteri.
The agreed statement of facts also included an overview of the injuries suffered by Spiteri. That evidence is considered below.

Grounds of appeal

The proposed grounds of appeal are: 1. "His Honour breached the principles expressed in R v De Simoni (1981) 147 CLR 383 by taking into account injuries which might have exposed the applicant to a more serious offence; 2. In determining the objective seriousness of count 2, his Honour erred in taking into account injuries which would have exposed the applicant to an offence of greater seriousness; and 3. The applicant has a justifiable sense of grievance in the light of the sentence imposed upon the co-offender [Errington]."

Grounds 1 and 2

It is convenient to address grounds 1 and 2 together, as did the parties.
The principle invoked by the applicant holds that, while the Court is entitled to consider all the conduct of the offender, including that which would aggravate the offence, the Court cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: R v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ); [1981] HCA 30.
The applicant submitted that the sentencing judge breached that principle by having regard to two bone fractures suffered by Spiteri. Those fractures arose from the stabbing of the right wrist and the left foot. It was submitted that the fractures amounted to grievous bodily harm, the establishment of which would have warranted a conviction for the more serious offence of wounding or grievous bodily harm with intent contrary to s 33(1)(a) of the Crimes Act. As already noted, that offence carries a maximum penalty of imprisonment for 25 years and is accordingly to be regarded as a significantly more serious offence than the offences to which the applicant pleaded guilty (reckless wounding in company contrary to s 35(3) of the Crimes Act carrying a maximum of 10 years).
The Crown took issue with the premise implicitly assumed in grounds 1 and 2 that the fractures described in the agreed facts amount to grievous bodily harm. I accept, as submitted by the Crown, that there is a real question as to whether that is established. However, it is possible to dispose of the application without deciding that issue and accordingly I have proceeded on the assumption contended for by the applicant.
In the case of the applicant, the statement of agreed facts addressed the injuries suffered by Spiteri as follows (at pars 17 to 19): "Dr Frank Hsieh provided an expert statement outlining the following injuries occasioned to, and treatment given to the victim as a result of the attack: 'Based on my examination of Steven Spiteri, the following was revealed: Mr Spiteri presented with penetrating injuries to his right hand and left foot. He underwent primary and secondary survey in the emergency department which identified a large laceration to his right hand at the base of the thumb and a left foot laceration near the great toe. No other injuries were found. X-ray showed a distal right radius bone fracture and left hallux bone fracture. He underwent exploration to his injuries and was operated on by both plastics and Orthopaedics teams. Orthopaedics team performed an open reduction and K-wires insertion to his right wrist to fix the fracture as well as washout open fracture left hallux with a 20% laceration of Extensor Hallucis Longus tendon which was repaired.' The injury to the right wrist penetrated dermis, tendons and even fractured bone. The plastics team repaired the tendons, arteries and nerves of the right wrist. He was reviewed by a hand physiotherapist the next day and was subsequently discharged. The victim also suffered following injuries as a result of the attack: • Stab wound and fracture to left foot • Lacerations to left buttocks • Bruising to inner left thigh • Bumps and scratched [sic] to forehead and scalp".
The sentencing judge referred to those agreed facts, saying (at p 7): "The facts deal with the investigation and arrest and I do not propose to read that out, but as I said before the facts also deal with the injuries, there were penetrating injuries to the right hand and left foot. The victim underwent primary and secondary survey in the emergency department which identified a large laceration to his right hand at the base of the thumb and a left foot laceration near the great toe. No other injuries were found, an x-ray showed a distil right radius bone fracture and a left hallux bone fracture. He underwent exploration of his injuries and was operated on as set out in the facts, I will not read that out. Injury to the right wrist penetrated the ulmus tendons and even the fractured bone and he was fixed up ultimately and he also suffered other injuries as set out in the facts." (emphasis added).
The applicant conceded that the mere recitation of the facts relating to the fractures does not of itself reveal error. So much is established by a number of decisions of this Court: R v Overall (1993) 71 A Crim R 170 at 174 (per Mahoney JA with whom Allen J agreed); R v Lardner (Court of Criminal Appeal (NSW), 10 September 1998, unrep) at 5 (per Dunford J with whom Sheller JA and Wood CJ at CL agreed); McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 at [48] (per Johnson J with whom Macfarlan JA and Blanch J agreed). Indeed, I would respectfully adopt the view expressed by Studdert J in R v Bakewell (Court of Criminal Appeal (NSW), 27 June 1996, unrep) cited in Lardner that it is appropriate for a sentencing judge to recite the facts correctly. As submitted by the Crown, in order to establish error, it is necessary to establish that the offender was actually punished for the conduct constituting the more serious uncharged offence or aggravating circumstance.
The applicant submitted that, in circumstances where the judge recited the facts relating to the fractures, and failing his having expressly disassociated himself from those facts, it should be inferred that his Honour did take the fractures into account as an aggravating factor. The applicant relied in that context on the decision of this Court in Wilkins v R [2009] NSWCCA 222. In that case, discussing a ground of error in the assessment of the objective seriousness of the offence, RA Hulme J (with whom McClellan CJ at CL and Davies J agreed at [1] and [44]) found that the sentencing judge had taken into account all of the physical injuries that were inflicted upon the victim, contrary to the principle in De Simoni. His Honour said at [31]-[32]: "[The sentencing judge] quoted from the statement of facts tendered by the Crown which set them all out. The judge later mentioned twice that it was fortunate that [the victim] did not suffer far more serious injury. At no stage did the judge say anything to the effect that he was limited in the nature of the injuries that he could take into account because the charged averred wounding rather than grievous bodily harm."
Those remarks do no more than to record Hulme J's analysis of different reasons in a different case. They cannot be understood to establish a principle of law that error is established whenever a sentencing judge recites the facts correctly and does not expressly disassociate herself or himself from facts capable of establishing an uncharged aggravating factor or a more serious offence. The proper approach is to look at the judge's remarks fairly as a whole in their context having regard to the submissions that were put to the judge and to determine whether the ground has been made out.
I am not persuaded that error is established in the present case. The fractures were identified in each case as a consequence of the relevant "penetrating" injury. It was the fact that the wounds penetrated the victim to the extent of causing fractures and that was a relevant fact, indicating the force with which the wounds must have been inflicted. It was appropriate for the judge to state those facts correctly.
It might have been open to the Crown to contend that the fractures amounted to grievous bodily harm; presumably that was at least part of the basis for the primary counts on the indictment. But the Crown accepted pleas to the alternative charges and, in doing so, must be taken to have abandoned any suggestion of grievous bodily harm, relying only on wounding. That is the context in which sentence was passed.
In his sentencing judgment, the judge did not attempt to characterise the bone injuries in any way. His Honour did no more than to recite those injuries in the terms in which they were described in the agreed facts. The judge was compelled by pressures of time to reserve his decision after the proceedings on sentence but the judgment was delivered orally and it is clear from its terms that, in reciting the facts, the judge was reading from the agreed facts document and giving a potted summary of its contents.
Further, in assessing the objective seriousness of the offences, the judge did not emphasise the fractures as separate injuries. It is clear enough that his Honour had regard to the fractures as being indicative of the force with which the wounds were inflicted but that was not inappropriate. The primary focus of the agreed facts, and his Honour's discussion of them, was on the seriousness of the acts that caused the wounds.
For example, in respect of the wrist injury, the agreed facts were: "the injury to the right wrist penetrated dermis, tendons and even fractured bone". The judge recited that fact in his assessment of the objective seriousness of count 2 but the focus of that discussion was on the violence, cowardice and brutality of the offenders' conduct. In recording that the wound had penetrated tendons and "even fractured bone", it is clear that the judge was assessing the force with which the wound was inflicted. That was an important aspect of the assessment of the offence.
In assessing the objective seriousness of count 4 (the wound to the foot inflicted by Reardon), again, the focus was upon the seriousness of the act of stabbing. There was no discussion of the fracture in that context. The judge said at p 3 of the judgment: "The facts set out the injuries which I will not refer to at the moment. I look at that to realise that this was a particularly callous exhibition, it did involve stabbing to the foot, that is true, but it is clear that the victim had already been administered some punishment; he was already bleeding. I appreciate that 'in company' is a matter that cannot be double counted but it was more than would meet the threshold for an 'in company' offence. There were a couple of extra people here and it was a deliberate callous stabbing of an already injured person. The victim was terrorised in his own home. So obviously it is a very serious example of this type of offence. It was brazenly violent conduct and it seems to me that it is at the top of the mid-range." (emphasis added).
There is nothing in the language of the judgment to suggest that the judge characterised the injuries described in the agreed facts as amounting to grievous bodily harm. On the contrary, his Honour evidently considered that, as wounds go, they could have been worse. At pp 10-11 of the judgment, the judge said: "It is contended that wounds were sustained but not to the most vulnerable areas. That might be true but one has to look at all the circumstances in working out just how bad this offence was."
For those reasons, I do not think there is any merit in grounds 1 and 2.

Ground 3 - parity

As already noted, the judge sentenced all three co-offenders at the same time. The parity ground is confined to a comparison of the sentence imposed on the applicant with that imposed on Errington.
The applicant was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years. The indicative sentence for count 2 (the offence committed by the applicant and Errington alone) was 5 years with a non-parole period of 3 years and 4 months. The indicative sentence for count 4 (the wound to the foot inflicted by Reardon) was 3 years and 6 months with a non-parole period of 2 years and 4 months.
Errington was sentenced to an aggregate term of imprisonment of 6 years and 4 months with a non-parole period of 4 years and 2 months. In his case, the indicative sentence for count 2 was 5 years and 4 months with a non-parole period of 3 years and 6 months, while the indicative sentence for count 4 was equivalent to that of the applicant and was 3 years and 6 months with a non-parole period of 2 years and 4 months.
The applicant submitted that the minor difference between the two sentences gives rise to a justifiable sense of grievance given Errington's poor subjective case.
I do not think there is any merit in this ground. There were slight differences between the cases presented by the two offenders and that was reflected in a slight difference between the two sentences. The appropriate degree of differentiation between the two was very much a matter for the sentencing judge's evaluation.
The judge found that the objective seriousness of the offences in each was alike, saying at pp 7-8 of the judgment: "It is sometimes said that the roles of a particular participant can be significant to criminality but this is not one of those cases. They are both equally liable for that particular matter, the first matter. In relation to the second matter neither of these two offenders was the stabber. They are both less culpable than the actual stabber, and significantly so. The first of the matters is above the mid-range for both offenders and the second matter is still in the mid-range though they are less culpable than the actual stabber."
Those findings are not challenged. This ground rests on alleged differences between the subjective circumstances of the two offenders including remorse, prospects of rehabilitation, the likelihood of reoffending, the fact that Errington was in breach of parole when he committed the offences and Errington's significantly worse criminal history.
The weight to be given to those factors was a matter for the sentencing judge. His Honour undertook a careful and detailed analysis of the subjective cases of each co-offender. Significantly, his Honour recognised differences in the applicant's case by backdating the sentence for the current offences to 18 August 2015. In the case of Errington, his Honour backdated the sentence only to 2 June 2016.
The applicant submitted that, for the purpose of this ground, the Court should consider the backdating of the sentence only in the event of resentence. I do not accept that submission. In my view, the time from which each sentence was fixed to commence is a relevant feature of the sentence for the purpose of assessing parity. Here, the applicant's sentence was backdated by almost a year earlier than Ermington's. I am not persuaded that the differences between the subjective cases were such as to point to the conclusion that the applicant has a legitimate sense of grievance.

Leave to appeal out of time

The application for an extension of time was supported by the explanation that, following two extensions of time granted by the registrar, the ultimate date by which the application for leave to appeal was due was "mis-diarised". Counsel for the applicant submitted that an extension of the time within which the application may be brought should be granted on the basis that there was no fault or delay on the part of the applicant and because of the merits of the application.
Had the grounds enjoyed a more favourable assessment of merit, I would not have declined an extension of time. However, for the reasons stated above, I consider that the proposed grounds of appeal are without merit and accordingly that the extension of time should be refused.

Conclusion

The order I propose is: 1. the application for an extension of the time within which to file a notice of application for leave to appeal is refused.
BELLEW J: I agree with McCallum 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: 22 February 2019

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