Mitchell v R

Dunn v R [2010] NSWCCA 128 Nowak v R [2008] 183 A Crim R 526 R v Borkowski [2009] NSWCCA 102 R v Cage [2006] NSWCCA 304 R v Hunter [2010] NSWCCA 54 CASES CITED : R v McCullough [2009] NSWCCA 94 R v McEvoy [2010] NSWCCA 110 R v Mitchell and Gallagher [2007] 177 A Crim R 94 R v Sutton [2004] NSWCCA 225 The Queen v De Simoni (1981) 147 CLR 383 Trad v R [2009] NSWCCA 56

PARTIES: Raymond Gary Mitchell Regina

COUNSEL: G Newton (Applicant) P Miller (Crown)

SOLICITORS: Goodhands Lawyers (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2008/20677

BEAZLEY JA BUDDIN J BARR AJ

MONDAY 12 JULY 2010 RAYMOND GARY MITCHELL v R Judgment 1 BEAZLEY JA: I agree with Buddin J. 2 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court following his plea of guilty to an offence of maliciously inflicting grievous bodily harm. The plea was entered after negotiations, following which the Crown decided not to proceed with the more serious offence of maliciously inflicting grievous bodily harm with intent. The offence to which the applicant pleaded guilty attracted a maximum penalty of 7 years imprisonment. A sentence of 3 years imprisonment with a non-parole period of 2 years was imposed upon the applicant. 3 An agreed statement of facts was placed before the sentencing judge. It revealed that on the evening of 7 July 2007, the victim of the offence and his de facto wife were involved in a domestic incident. As a result of the incident, the victim's partner obtained an apprehended violence order against the victim. The victim's partner is the applicant's cousin. At about 10.30 pm that evening, the victim attended the Murwillumbah Hotel where he consumed a number of drinks of bourbon and cola. He had also been drinking earlier in the night before arriving at the hotel. The applicant was also drinking at the hotel. At about 1.30 am the following morning patrons were asked to leave the hotel. The victim left the hotel in the company of friends and began walking along the footpath. The applicant came from behind the hotel and placed himself in front of the victim whereupon he proceeded to assault him. 4 The details of what occurred during the course of the assault were in dispute at the sentence hearing. The sentencing judge resolved that dispute after having heard oral evidence from a number of witnesses, including the applicant. His Honour was not satisfied beyond reasonable doubt of two matters upon which the Crown relied, which had they been established, would have served to aggravate the seriousness of the offence. On the other hand, his Honour said that he was not satisfied that there had been "any offer of violence towards the offender by the victim". In arriving at that conclusion, his Honour explicitly rejected the applicant's account of events. Moreover, his Honour was satisfied, notwithstanding his denial, that the applicant had said to the victim before the assault "You should not have hit her". That was clearly a reference to the applicant's cousin because the evidence revealed that the applicant's aunt and uncle had told him that she had been struck by the victim earlier that evening. 5 His Honour expressed his ultimate findings upon the hearing concerning the disputed facts in the following terms: I should say that I am satisfied beyond reasonable doubt that at least four punches were delivered to [the victim] to achieve or to result in him being so dazed, or knocked out I know is the common term, but causing him to fall in a place where it was obvious that any such fall would cause potentially a head injury. 6 Immediately after the incident, the applicant left the area in the company of a male and a female. The victim was left lying unconscious on the footpath. Fortunately, a bystander was able to revive him by administering CPR to him. In due course the victim was treated by ambulance officers who conveyed him to Murwillumbah Hospital and then to the Gold Coast Hospital where he remained in the Intensive Care Unit for nearly three weeks. 7 As a result of the assault, the victim received the following injuries which were set out in the agreed statement of facts: 1 Bifrontal contusions (swelling of the brain). 2 A 2 to 3 mm in thickness left temporal subdural haemorrhage. 3 A traumatic subarachnoid haemorrhage in the left fronto temporal region. 4 Fracture occiput extend to the base of the skull. 5 Loss of taste and smell. 8 The applicant declined the opportunity to be interviewed when spoken to by police. 9 The sentencing judge characterised the offence in the following fashion: As I found, this was an unprovoked attack upon the victim who has unfortunately suffered significant consequences which are set out in detail in the material before me particularly in the neuro-psychological assessment of March 2009. What happened was he was hit, as I found, by the offender at least four times, he fell back and significantly injured his head on a grating in the street in Murwillumbah and if you hit people hard enough to knock them down on pavements and streets and the like, then it is perfectly clear that they are going to get significantly injured if they fall back in that way . The background was that there was some unfortunate family dispute and this had upset the offender but to take it out on the person he regarded as an offender in the way in which he did of course is totally unacceptable and indeed on his behalf [counsel] acknowledges that and it is quite clear from the further reports that have been obtained that the offender himself has come to terms with that and realises it is unacceptable conduct. (emphasis added) 10 The clinical neuropsychologist who conducted the assessment concluded that the victim had "sustained mild to extremely severe cognitive deficits throughout the brain (in different areas of cognitive functioning) as a result of injury from the assault". 11 The applicant was 29 at the time of the offence. He left school just before turning 14 and had immediately commenced working as an earthmoving plant operator with his father. At the time of sentence, the applicant had been in a committed relationship for a period of 7 years and he and his partner had three children in their care. The evidence demonstrated that the applicant had the continuing support of his parents and his siblings. 12 His Honour described the subjective case, which had been advanced on the applicant's behalf, as being very impressive. He accepted that the applicant was a "very hard worker" and that he is "a very supportive person". He accepted that the applicant is "obviously bound up in putting his family first and that may well be some sort of explanation as to why he acted as he did". His Honour extended to the applicant a discount of 25% for his plea of guilty and also found that "his prospects of rehabilitation are better than most". That was despite the fact that the applicant had a number of convictions for driving offences, including three separate offences of driving whilst disqualified, as well as a conviction for assault occasioning actual bodily harm. His Honour concluded that a sentence of periodic detention was inappropriate. In doing so his Honour observed that "people have to accept responsibility for hitting people so hard and a number of times that they fall to the ground and sustain further injury". 13 His Honour decided to vary the normal statutory proportion between the head sentence and the non-parole period because "there is a requirement for a longer than normal period on parole" and because it was the applicant's first experience of custody. 14 The following grounds of appeal were advanced: 1 The sentencing judge erred in failing to assess the objective seriousness of the offence. 2 The sentencing judge erred in failing to take into account relevant mitigating factors set out in s 21A Crimes (Sentencing Procedure) Act 1999 (NSW). 3 The sentencing judge failed to give practical effect to his finding of special circumstances. 4 The sentencing judge erred in effectively treating the nature and extent of the injuries to the victim as an aggravating feature of the offence in breach of s21A(4) Crime Sentencing Procedure Act 1999 (NSW) and contrary to the principles set out in The Queen v De Simoni (1981) 147 CLR 383. 5 The sentencing judge erred in his assessment of the evidence relating to whether or not there was any provocation by the victim. 6 A miscarriage of justice occurred as a result of the incompetence of counsel who appeared for the appellant on sentence in failing to cross-examine Kaylene Alderton. 7 The sentence imposed was manifestly excessive.

Ground 1 15 It was submitted that his Honour "failed to categorise the offence in the spectrum of objective seriousness [and that that] error fundamentally tainted the sentence imposed as it is not possible to assess the reasonableness of the sentence given such error". 16 It is advisable for a sentencing judge to make an assessment of where on the scale of criminality a particular offence lies. Criticism has been made of a failure to do so: R v Cage [2006] NSWCCA 304 [at paras 15-18]; R v Hunter [2010] NSWCCA 54 [at 41]. The obligation to make the assessment in question obviously has particular significance in the context of offences in respect of which a standard non-parole period applies. Nevertheless in R v McEvoy [2010] NSWCCA 110, a decision which concerned an offence of that kind, Simpson J indicated that a failure to make such an assessment constituted an error of process which did not necessarily mean that the sentence itself was erroneous [at para 89]. Her Honour's observation was cited with approval in Dunn v R [2010] NSWCCA 128 [at para 20]. 17 Although it is true that his Honour did not, in terms, identify where on the spectrum of objective seriousness the present offence lay, it is abundantly clear from his description of the offence that he regarded it as a matter of considerable gravity. Moreover, the fact that his Honour identified a starting point for the offence of 4 years, as against a maximum penalty of 7 years imprisonment, made his assessment of its gravity even more apparent. It is convenient to defer any further examination of this issue until Ground 7 is considered.

Ground 2 18 In respect of this ground, it was submitted that the sentencing judge had failed to take into account three separate matters. One concerned an assertion that the applicant was provoked by the victim. It is convenient to consider that matter when dealing with Ground 5. 19 The first matter about which complaint is made is that his Honour failed to take into account the fact that the offence was not "part of a planned or organised criminal activity" within the meaning of s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999. The interpretation of that section is not without its difficulties. Nevertheless, the issue which presently arises is whether or not the offence was premeditated. As I have indicated, his Honour found that the applicant had been upset by what was described as "some unfortunate family dispute" and that he had, as a consequence, reacted to that situation. That may suggest that his Honour did not regard his actions as being entirely spontaneous. On the other hand, his Honour may have considered that the present issue constituted a matter of neither aggravation or mitigation. Regardless of how his Honour treated the matter, I am far from persuaded that his Honour was bound to conclude that it was a factor that ameliorated the otherwise appropriate penalty. 20 It was also submitted that his Honour failed to take into account the fact that the applicant was "unlikely to reoffend" within the meaning of s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999. The answer to that proposition may well lie in the report of the psychologist which was tendered on the applicant's behalf. The author of the report stated that: I recommend [the applicant] have access to counselling (that includes anger management) to develop appropriate ways of managing his behaviour when he feels that his loved ones are threatened. Cognitive skills training would be useful for [the applicant] to understand the consequence of his actions. With appropriate counselling, the likelihood of [the accused] reoffending will be minimized . (emphasis added) 21 The applicant's antecedents provide a further reason why the sentencing judge would have been quite entitled to draw back from reaching a conclusion that the applicant was "unlikely to reoffend".

Ground 3 22 The essence of the submission advanced in relation to this ground, is that having found "special circumstances", his Honour reduced the non-parole period by only 3 months. 23 Counsel for the applicant referred to this court's decision in Trad v R [2009] NSWCCA 56. Particular reliance was placed upon the following passage in which Price J, with whom the other members of the court agreed, said :

Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances. The size of an adjustment to the statutory ratio, special circumstances having been found, is essentially a matter within a Judge's discretion. As was observed by Spigelman CJ in Regina v Cramp [2004] NSWCCA 264 at [31] the size of an adjustment for special circumstances " raises so many matters of a discretionary character that this Court should be very slow to intervene" and will not usually be interfered with unless the non-parole period is found to be manifestly inadequate or manifestly excessive. [at para 33] 24 With respect, it is difficult to see how those observations advance the applicant's cause. 25 Reliance was also placed upon this court's decision in R v Sutton [2004] NSWCCA 225. Howie J observed, of the reduction by the sentencing judge in that case of "about three months" from the non-parole period that "it rather makes a mockery of a finding of special circumstances in response to the need His Honour found for "extended supervision and counselling" [at para 30]. However, those comments were made in an entirely different context. The reduction in the present case was in respect of a non-parole period, which but for the finding of "special circumstances" would have been 2 years 3 months, whereas in Sutton it would otherwise have been 4 years 9 months. Moreover, the circumstances which existed in Sutton were quite different from the present case. They involved a driver, who was an admitted alcoholic, with a bad driving record who had killed a cyclist whilst driving in a highly intoxicated state. It was in that context that the finding, that the offender needed an "extended period of supervision and counselling" because of his alcoholism, was made. There was no such finding in the present case and nor was there any evidentiary basis upon which such a finding could have been made.

Ground 4 26 In relation to this ground it was submitted that the sentencing judge fell into error upon the basis, so it was asserted, that his Honour "effectively treated the nature and extent of the injuries to the victim as an aggravating feature of the offence". The error was said to arise because "very serious injury was incorporated in the elements of the offence". 27 In support of the submission, counsel relied upon the following passage from this court's decision in Nowak v R [2008] 183 A Crim R 526 in which it was said that: Earlier the sentencing judge had observed that "the offence itself is an objectively serious one, demonstrating a significant degree of violence, resulting in substantial injuries to the victim". No criticism was, or could be, raised in respect of those observations. A sentencing court is entitled to have regard to the extent of the injuries in assessing the objective seriousness of a particular offence so long of course as the principles in The Queen v De Simoni (1981) 147 CLR 383 are not infringed: see, for example, R v Way (2004) 60 NSWLR 168 at pars 106-107. However, to treat as an additional aggravating factor that the injury was substantial in an offence of the present type does bespeak error of the kind referred to in Cramp (supra) : see also R v Jammeh [2004] NSWCCA 327 at par 23; R v Murphy [2005] NSWCCA 182 at pars 22-25. [at para 22] (emphasis added) 28 It was also submitted that his Honour fell foul of the principles enunciated in The Queen v De Simoni (1981) 147 CLR 383 when he remarked that the appellant's blows to the victim caused him to fall in a place "where it was obvious that any such fall would cause him a head injury". It was submitted that "such comments assumed an element of foresight on the appellant's part… consistent with an intention to inflict grievous bodily harm that would have made out the more serious charge" with which he had originally also been charged. 29 As I indicated earlier the remarks of his Honour which are sought to be impugned, formed part of his conclusion on the disputed facts hearing. They were not repeated in the Remarks on Sentence although his Honour captured the essence of those findings in the highlighted passage which appears at para 9 of these reasons. Counsel for the applicant appeared to accept that his Honour in that passage, at least, was doing no more than highlighting the inherent dangerousness of the applicant's conduct. 30 In any event his Honour was required, in assessing the objective gravity of the offence, to have regard to the various injuries which had resulted from the applicant's conduct particularly as the offence is what has been described as "a result offence": see R v Mitchell and Gallagher [2007] 177 A Crim R 94 [at para 27]; R v McCullough [2009] NSWCCA 94 [at para 37]. At no stage did his Honour have regard to the elements of the more serious offence. Nor was there any focus on the applicant's actual state of mind as distinct from what the circumstances, viewed objectively, revealed. Furthermore, in reciting the history of the matter, his Honour made it very clear that he well understood in respect of which offence the applicant stood to be sentenced. Nor, finally, did his Honour fall into the kind of error that was identified in Nowak (supra) by in some manner treating the injuries as an "additional aggravating feature". Ground 5 31 As I have previously indicated, the sentencing judge rejected the proposition that the victim had offered any provocation to the applicant at the time of the assault. No challenge is made in respect of that finding. The claim for mitigation of penalty on account of provocation arose, so it was submitted, from the fact that the applicant had been informed by his aunt and uncle that they were concerned about the victim's behaviour towards their daughter, who, as I have said, is the applicant's cousin. The applicant's perception, so it was put, was that being aware of a history of domestic violence between them, he had then sought to act in the interests of his cousin and her parents. It was asserted that he had reacted in the fashion that he had because he had been provoked. 32 The short answer to the submission is that his Honour specifically recognised that the offence occurred against a background of a family dispute which, in turn, explained his motivation for acting as he did. That said, the evidence fell well short of constituting "provocation" within the meaning of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999. More importantly, the present submission pays no heed to the manner in which the matter was conducted at first instance. Not only did the applicant, in effect, deny that he had been provoked in the manner which is now contended, but during the sentence proceedings, he gave evidence that he had punched the victim because he believed that he was about to be punched himself.

Ground 6 33 As was indicated earlier, the sentencing judge referred to the neuropsychological assessment which had been made of the victim. It was submitted that that report was "on its face defective in a number of ways and that such defects could have been exposed by cross-examination". The author of the report took a history from the victim which included the fact that prior to the incident he was in the habit of smoking 25 cones of marijuana each day as well as having experimented with speed, ecstasy and LSD "in the earlier part of his life". The report was criticised insofar as it contained "no reference … as to what effect (if any) such prolonged heavy drug use could have had on the tests administered or the results obtained". To reinforce the point, counsel submitted that "there is no explanation as to whether or not his history of drug use or any other factor could provide any other explanation for his test results". 34 It is to be observed that no objection was taken to the admissibility of the report. There was, in any event, ample evidence of the victim's serious injuries in the various medical reports which were in evidence. Dr Papacostas, the Neurosurgeon Registrar at the Gold Coast Hospital expressed the opinion in 2007 that "I would expect that he will have some degree of long-term brain injury sequelae, but it is impossible to know to what extent at this time". The opinion which is now criticised was arrived at following an extensive examination of the victim and in one sense, all it did, was to provide confirmation for Dr Papacostas' initial prognosis. 35 There remains however a more fundamental hurdle for the applicant to overcome. Put shortly, it is quite impossible to know what evidence may have emerged in cross-examination. Nor is there any basis for assuming that concessions favourable to the applicant would have been made. Indeed, counsel appearing on behalf of the applicant in this court conceded that he was unaware of whether or not a conference had been conducted with the witness. 36 It can be accepted that incompetence of counsel at a sentence hearing may be sufficient to attract appellate intervention. Such instances are likely to be rare and the present case is certainly not one of them. If anything, the circumstances rather suggest that a sound tactical decision was taken not to challenge the expert evidence. A challenge to it may well have run the risk that the extent of the victim's disabilities would have been further emphasised and that the applicant's claim to be entitled to the full benefit of the utilitarian discount for the plea of guilty and to a further discount for remorse would have been undermined.

Ground 7 37 It was submitted on behalf of the applicant that the overall objective seriousness of the offence was reduced because no weapon had been used. That fact, together with his favourable subjective case, was said to demonstrate that the sentence which was imposed was manifestly excessive. Counsel also sought to make good that submission by reference to a schedule of 10 cases which were asserted to be comparable to the present case. The limitations of such material are well-recognised. Furthermore, the authorities to which reference was made, could hardly be said to provide any reliable indication of the appropriate range for an offence of the present kind particularly as only two of them were decided in the last decade. Of those, one was a Crown appeal and in the other, the offender received a head sentence of 5 years which is considerably longer than the head sentence imposed in the present case. It is to be observed that both of those decisions were, in any event, brought to the attention of the sentencing judge. 38 I am not persuaded that the sentence exceeded the legitimate range of his Honour's sentencing discretion, particularly given the number of blows that were administered by the applicant and the serious injuries that were occasioned to the victim. Moreover, as the Crown pointed out, a discount of 25% for a plea of guilty offered after a contested committal hearing was decidedly generous: R v Borkowski [2009] NSWCCA 102 [at para 32].

Conclusion 39 For the reasons which I have given, each of the grounds of appeal should be rejected. I propose that leave to appeal be granted but the appeal be dismissed. 40 BARR AJ: I agree with Buddin J. **********

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