Seoraise McAdam's injuries included a laceration to the left side of his scull which required suturing when admitted to Bankstown Hospital. He also had some contusions to his left knee and right hip and some tenderness to the left forearm".
12 Neither the appellant nor his brother gave evidence at the sentencing hearing. A psychological report for each brother was tendered before the court, as were other incidental documents of no moment for the purposes of this appeal. A reading of the transcript of the proceedings indicates that initially the sentencing judge appeared likely to accept Mr Ainsworth's principal submission on behalf of the appellant. This was a submission that, although he had been involved in a joint criminal enterprise, his involvement might properly be seen, in terms of overall criminality, as much less than that of his brother.
13 However, the Crown's submissions (commencing at page 20 of the sentencing transcript) appeared to bring about a significant change of attitude in the sentencing judge. The initial exchange gives the flavour:-
" Singh: This is a very grave matter. The prisoners before you are charged with three very serious matters on the indictment and two other serious matters on Form 1. Your Honour would note from the facts it is very clear that this was a planned attempt.
His Honour: I was wondering about that, I wasn't quite sure how to interpret the facts because it certainly seems to have resulted from a bump, so far as you can work it out. Then at the time when they are intoxicated they leave and they wait, in the case of one offender, a baseball bat in hand. There is no evidence of previous bad blood of any sort. I just wonder to what extent can it be described as planned.
Singh: Your Honour the scuffle that happened between the two offenders and the person in the pub are not the three victims of the matters on indictment. They had a golden opportunity because the publican booted them out so to speak from the hotel but both of them decided to go into the pub but with others and there my friend makes a big point about the difference between what the two brothers did. One pulled out the baseball bat and gave to the other, that's starting point your Honour and then on the police facts they waited in that area for a minimum of one hour and then when these victims came out of the pub they were headed in a different direction, they were attacked from behind with a baseball bat and your Honour has all of the relevant material from the victims as to how they have suffered for this long period, even until today."
14 It will be noted immediately that the Crown's description of one "pulling out" the baseball bat and giving it "to the other" was simply not justified by anything in the agreed statement of facts. The matter, however, was not left there. A little later in submissions the Crown representative said: -
" Singh: Then the Crown says the second point does not stop there. Then the other brother, who my friend says there is a lesser role, he pulls out -
His Honour: Dean.
Singh: Yes Dean. He pulls out the baseball bat and then he hands this to his brother Nathan and then this baseball bat is hidden in the bush area there in the shrubs as it is described and then there is a lapse of a period of one hour, minimum of one hour on the Crown case, time to cool off, a time nicely to go back home, they were not living very far away from the pub. All those things, without going to new areas of fact, there is so much time to cool off from a little scuffle and then if it's not planning this man here and the other, the first count on the indictment, they were heading in a different direction. They armed themselves, attacked them from behind and hitting someone with a baseball bat on the head from behind , a man who is unaware, unable to defend himself unarmed, is part of the planning and the objective seriousness of this matter."
15 Once again, the Crown's description was very considerably removed from the actual agreed facts.
16 Mr Singh continued his submissions at page 23 of the sentencing transcription. He said: -
"Your Honour would look at page 209 paragraph 23. The principle laid down there was that there is no universal principle that the culpability of an aider and abetter is less than that of a principal offender. In this case my friend is right on a point that your Honour could discriminate in a proper case but your Honour this is not the proper case because bearing in mind the facts of the case the second brother Dean had a very substantial role to play. He is the one who accessed the offensive weapon, the baseball bat, from the car and handed it to his other brother . That was one vital step in the commission of this serious offence and the use of the offensive weapon".
17 Ultimately, Mr Singh submitted that the case was one where the sentencing court could not really "divide and discriminate in the roles they played". Once again, he described the scene in these terms: -
"Both waited outside for one hour, the one equips the other then when it comes to the third count, one actually holds on to the leg while the other is being assaulted, an innocent man".
18 The Crown's representative submitted that any global sentence less than five years would be regarded as very lenient and would lead undoubtedly to appealable error. In his final submission the Crown repeated that both men had acted in this "together" and that the pleas had been entered on that basis.
19 Now, it must be said that these were very damaging submissions. The agreed facts plainly indicated that the appellant had removed a baseball bat from the rear of his car and had hid it in nearby bushes. The agreed statement of facts, however, was silent as to why this was done. When the other three men left the hotel, the agreed facts make it clear that Nathan retrieved the baseball bat from the bushes and ran up behind them with the baseball bat and struck them. It appears that Dean's role at that point was limited to approaching one of the men, the Tongan gentleman, and striking him in the face with his elbow. It is true that towards the conclusion of the agreed statement of facts the following appears: -
"DL pleas to the three counts on the indictment are based on his participation in a joint criminal enterprise basis, even though the assaults with the bats were committed by NL. He provided the bat and was present at and then contributed to the assaults on the victims."
20 The agreed facts, although equivocal in some respects, simply did not allow for a finding that the appellant handed the baseball bat to his brother Nathan immediately before Nathan used it on the victims.
21 The sentencing judge gave his decision on Friday, 10 July 2009. It is quite apparent from the decision that his Honour accepted the Crown's submissions to which I have referred. This can be seen clearly from the following passage: -
"In relation to both offenders, they are both assessed relevantly as suitable for periodic detention, a modality of sentence which was urged by Mr Ainsworth, for whose capable and comprehensive submissions I am grateful, in respect of the offender Dean Loury, but not in respect of the offender Nathan Loury. I regret that I do not consider that to be sufficient punishment for the offender Dean Loury.
Both offenders acknowledged their offending, and the offender Dean Loury told the writer of the pre-sentence report that he was not aware that his brother would use a baseball bat to approach the victims, but I point out that the agreed facts indicate that Dean Loury handed a baseball bat to his brother Nathan Loury immediately before Nathan Loury used it on the victims: so I find that assertion difficult to understand and I do not accept it."
22 Later in his reasons the sentencing judge said: -
"Mr Ainsworth submitted strongly that the offender Dean Loury has a lesser role because it was not he who struck the various victims with a baseball bat. Initially I was persuaded that was so, but the Crown pointed out that the agreed facts establish that the baseball bat was handed by Dean Loury to Nathan Loury, and that the attack on the victims with the baseball bat occurred in short order thereafter in the presence of Dean Loury…minds may differ as to this but I am unable to see that there is a significant difference in roles between the two offenders. Clearly Dean Loury contemplated when he handed the baseball bat to his brother Nathan Loury that Nathan would use it to attack the victims , as indeed he did. It was produced from the boot of a car after the offenders had left the premises in question and they waited thereafter for their victims ".
23 Later his Honour said (in reference to Mr Ainsworth's submissions): -
"He submitted strongly that Dean Loury did not require fulltime custody and that a suspended sentence or periodic detention were available options and that one or either of them should be applied. This submission was principally based on the proposition that Dean Loury had a lesser role in the offences, with which I disagree for reasons set out above".
24 Finally, it is necessary to refer to one further passage in the sentencing decision at pages 12 to 13: -
"The Crown replied and pointed out that the present matters are very grave and that three very serious offences had been committed, and after some persuasion persuaded me that there was some planning in the offences, although of course, it did not extend over several days and weeks, as sometimes occurs in offences with which one deals. He suggested that the attack was unprovoked and cowardly and of course I agree, and it pointed to the role of Dean Loury in pulling out the baseball bat and handing it to his brother , following which it was hidden in a bush area, after which an hour elapsed before the victims emerged from the hotel heading in different directions and unarmed following which the attack occurred. That of course supports planning, and it also supports the extent of the offender Dean Loury's role.
The Crown said as to disparity between the offenders' roles DAS v The Queen [2004] 217 CLR 198 -209 [23] is authority for the proposition that there is no universal principle that the culpability of an aider or abetter is less than that of a principal. That is so here, although I think that the offender Dean Loury's role extended to a somewhat greater degree of gravity than that of a simple aider and
abetter. After all, he handed the baseball bat to his brother , and was present throughout the entirety of the attacks, and waited with his brother for an hour, with the baseball bat concealed in the bushes before the victims emerged from the hotel…that seems to me to mark his role as being that of a principal rather than an aider or abetter. As I have said, minds may differ as to whether the two offenders' roles were substantially similar but I think they were for reasons already expressed. That was the Crown's submission and I accept it."
25 It was most unfortunate that counsel for the appellant failed to correct the submissions of the Crown representative. It was most unfortunate that he failed to urge upon his Honour that the core findings he was likely to make concerning the appellant's role in the enterprise were not consistent with, nor supported by, the agreed statement of facts. This misapprehension on the part of the sentencing judge, brought about largely by the erroneous submissions by the Crown, became the platform on which the appellant's sentence was based.
26 The appellant was then convicted and sentenced on counts 2 and 3 to concurrent non-parole periods of two years to date from 10 July 2009 and to expire on 9 July 2011, and parole periods of two years to date from 10 July 2011 and to expire on 9 July 2013. In respect of count 1, the appellant was sentenced to a non-parole period of two and half years to date from 10 July 2009 and to expire on 9 January 2012, and a parole period of two and half years to date from 10 January 2012 and to expire on 9 July 2014. The practical effect of the sentences was that the appellant would become eligible for release to parole on 9 January 2012. The sentence on count 1 was stated to take into account the Form 1 matters.
27 Nathan was sentenced to an identical sentence, although his parole release date was a little earlier than his brother. This was because of the earlier period he had spent in custody.