Muggleton v R

Court of Criminal Appeal (NSW)|2015-04-02|Before: Simpson J, Harrison J, Adamson J

Solicitors: File Number(s): 2012/108675 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 28 February 2014 Before: English DCJ File Number(s): 2012/108675

Judgment

SIMPSON J: I agree with Adamson J.
HARRISON J: I agree with Adamson J.

The facts

The following narrative is derived from the Agreed Facts which formed the basis of the applicant's plea of guilty and were tendered on sentence.
At about 2.30 pm on 4 April 2012, the applicant arrived at the Grey Gums Hotel, Penrith. He had finished work for the day. During the course of the afternoon and into the evening he drank with his workmates in the beer garden of the hotel. At about 7pm Grant Small (the victim) met his cousin, Andrew Quinell, at the hotel, where they dined before playing pool together. At about 10pm Mr Quinell arranged for them to be collected from the hotel. Mr Quinell and the victim, who brought with him a schooner of beer which was half full, went into the beer garden to wait to be picked up.
The applicant, who was still drinking in the beer garden, was engaging in a loud mobile phone conversation in which he was discussing work. The victim, who mistakenly thought the applicant was addressing him, said: "Don't worry about work, mate, it's Easter, it's a long weekend."
As a result of the victim's remark two men in the applicant's group called the victim a "gronk". According to Simon Taateo, the manager of the hotel, the applicant appeared, at this time, to be calm. At the time of the exchange, the victim picked up his glass and walked towards the applicant. He had a cigarette in his left hand and appeared, on the CCTV which captured the scene, to be smiling. The applicant, who was holding his schooner in his left hand, stood up and took a couple of steps towards the victim and smashed the glass by forcing it into the victim's face. The applicant then grabbed the victim by the neck and started kneeing his face and punching him. Mr Taateo and a security guard intervened to separate the applicant from the victim. The applicant, who had sustained a cut to the palm of his hand, then went to the toilets.
Hotel staff assisted the victim, whose face was bleeding profusely. He was taken by ambulance to Nepean Hospital. Lacerations to his right cheek, right and left upper lips and nose were repaired. His left nostril had been split. A skin graft was required to repair the injury to the tip of his nose. The operation was conducted by Drs Wu and Sawar. The victim was discharged the following day but was required to attend the Plastic Surgery Outpatients Clinic on 16 April 2012 for removal of his sutures. Facial lacerations healed within this period, apart from the laceration to the right nostril which took longer to heal.
The applicant went to Penrith Police Station the following day and participated in an Electronically Recorded Interview with a Suspected Person (ERISP) in which he said that he did not remember hitting the victim in the face and that he was only slightly affected by alcohol. The applicant originally said that the victim had punched him but after viewing the CCTV footage he changed his version and alleged that he had felt intimidated when the victim approached him carrying a glass. He agreed that his reaction was wrong and extreme.

The sentence hearing

The sentence hearing took place over two days: 1 November 2013 and 28 February 2014. The remarks on sentence were delivered ex tempore at the conclusion of the hearing on 28 February 2014.
The Victim Impact Statement of Mr Small dated 21 October 2013 was read out in court by his wife, Ms Cook. Mr Small recounted the effects of the assault on his physical appearance, his financial position, his emotions and his family life. Mr Small's statement referred to the fact that his fiancée and their four children witnessed both the scene and the aftermath as they had come to the hotel to collect him. That they, too, had seen the event distressed him.
Mr Small described himself before the assault as a father of four children, who was confident in his appearance, made friends easily, worked full-time in cold storage, ran a small lawn-mowing business on the side and coached his son's soccer team, having played representative soccer himself in the past. As a result of the assault he is no longer employed, his face is permanently scarred and he feels that his relationships have been compromised by his anxiety and response to the assault, as well as his physical appearance. He has been diagnosed with severe depression and post-traumatic stress disorder.
Mr Small's victim impact statement concluded: "The scars, memories, the pain, the mental anguish and financial stress will remain with me for the rest of my life. I just hope one day I am able to wake up and not have it be the first thing I think of."
Ms Rotundo, a clinical psychologist, prepared a report dated 18 December 2013 at the victim's request. Because of the relevance of the statement to the second ground of appeal, I shall set it out in full: "This report is provided at the request of Grant in his appeal against the rejection of his application for a Disability support Pension. Grant was the innocent victim of a severe, reportedly unprovoked assault which occurred on the 4.4.2012. This has impacted on him physically, psychologically, socially and financially. In the intervening 20 months, he has been unable to work due to physical and psychological problems. Grant is the father of 4 children between 10 and 3 years of age and the family has experienced severe financial stress, exacerbated by the ongoing and high costs of his medical care. On a psychological level, Grant reports symptoms consistent with a DSM V diagnosis of Post Traumatic Stress Disorder (PTSD). His direct experiencing of a severe trauma, resulting in injury and threatening his life and safety, has resulted in his continuing to experience recurrent involuntary flashbacks to the incident, nightmares and associated sleep disturbance. Other significant symptoms include heightened anxiety, irritability and hypervigilance, depressed mood, suicidal ideation, low frustration tolerance, reduced engagement with others, difficulty concentrating low energy and motivation and loss of feelings of self confidence and self worth. His level of stability is poor, with periods of marked exacerbation reactive to increased stress. His symptoms are impacting on his ability to function in his day to day life and significantly impeding his ability to look for or engage in regular work. On the Impact of Events Scale Revised (IES-R) completed on 17/12./2013 Grant's score was in the very severe range, consistent with the above diagnosis and reflective of the continuing severity of his level of dysfunction. Grant has been receiving regular treatment for his PTSD from his GP, Dr Har who is managing his medication and has also been attending regular counselling with Christine Prentice, an experienced Trauma Counsellor. Despite active treatment, his PTSD has not resolved and his problems continue to a level of severity which would make his return to the workforce difficult. While ongoing treatment is strongly recommended and could see further improvements, at this point his long term prognosis is uncertain. His current presentation does suggest however that he is certain not to return to the workforce in the immediate future. The granting of a Disability Support Pension would help reduce the current financial stress on the family and on Grant, and could assist with his recovery in the long term."
The Crown also tendered a report of Christine Prentice dated 14 October 2013. Ms Prentice is a therapist who specialises in counselling victims of trauma. She has been assisting the victim since July 2012. She said in her report: "Grant's sense of self as a partner, father, role model to extended family, financial provider, worker, has all taken a beating and his way of operating in each of these arenas in life has been the source of his self-esteem and confidence. At this point it is the huge sense of loss of self and grief over the way his life was that serves to debilitate him and reverberates through his family. He now has to work on PTSD symptoms that will take much time, effort, perseverance, and intensive therapy in an attempt to reclaim some degree of life as Grant once knew it. There are huge hurdles to overcome and the future degree of functioning in each of these areas at present is uncertain."
The Crown tendered a report dated 25 October 2013 of Dr McHugh, an oral maxillofacial and cosmetic surgeon. Dr McHugh said that the victim's surgical recovery has been excellent in terms of "facial aesthetics" but referred to the victim's "major psychological response both to the attack and to the recovery", although he said that he was not qualified to comment on these.
The Crown tendered the applicant's criminal history which revealed that his only prior conviction was for the offence of drive with middle range Prescribed Concentration of Alcohol in May 2007. The Crown tendered photographs of the victim at various times to show the severity of the wounds and the progress of their healing. They were admitted over the applicant's counsel's objection. The Crown also tendered the ERISP referred to above and the transcript of the applicant's consent to a forensic procedure. The Crown relied on an expert certificate of Dr Wu who deposed as to the victim's medical treatment at Nepean Hospital.
The Crown also played the CCTV footage of the incident at the sentence hearing and tendered the DVD.
The applicant tendered a report dated 8 May 2013 from Anthony Gunn, psychologist, who had counselled him in the previous year. Mr Gunn recounted the history given to him by the applicant that the applicant was beaten badly at a pub about eight years earlier, as a result of which he developed post-traumatic stress disorder. Mr Gunn considered this disorder to have contributed to the assault on the victim and said: "From my experience, it is very common for people who suffer from PTSD to temporarily lose self control when confronted with something that subconsciously reminds them of past trauma."
The applicant also tendered a report of Associate Professor Menzies, a clinical psychologist who opined: "It is my view that on 4 April 2012 Troy Muggleton was suffering from Post Traumatic Stress Disorder. It is my view that this is a significant contributing factor in the events that unfolded in the Penrith hotel on that occasion. It is my view that the scene triggered a re-experiencing event for Troy who then acted out in the presence of extreme anxiety."
The applicant relied on a letter of support from John Holmes, Managing Director of Auspits, a custom concrete product manufacturer, which employed the applicant as second-in-charge supervisor of its Penrith plant. Mr Holmes described the applicant as a "reliable, polite and conscientious employee", who was important to the operations of the business.
The applicant gave evidence at the sentence hearing, including as to his regret at what he had done and the impact on the victim and his family. He said that he felt "intimidated" and "threatened" when he saw the victim approach him in the beer garden. He also spoke of his psychological treatment and his attempts to address the problem that led to the offending conduct. He also gave evidence that he is in a steady relationship with a woman who has an eight-year old daughter, with whom he hopes to live in the future. In cross-examination the applicant admitted that he had consumed at least eight but less than 16 Hahn Super Dry beers since arriving at the hotel and that he was five foot seven inches tall. In the following exchange in his cross-examination the applicant accepted that alcohol was a contributing factor: "Q. You wouldn't have attacked someone with a glass and continued to sustain assault on them if you'd been sober? A. I've never done it before at all so no I wouldn't."
The Crown submitted that the sentencing judge could "safely find" on the basis of the victim impact statement and the two reports of counsellors that the emotional impact on the victim exceeded that which one would normally expect from an offence against s 33(1) of the Crimes Act (wound with intent to cause grievous bodily harm). The Crown contended, accordingly, that the factor of aggravation provided for in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the injury, emotional harm, loss or damage caused by the offence was substantial") had been made out.
Mr Higgins, who appeared on behalf of the applicant at the sentence hearing, submitted that the sentencing judge ought not find that the victim suffered substantial emotional harm. He contended that the evidence of the emotional harm suffered by the victim was contained in the victim impact statement, to which little weight ought be given. Mr Higgins referred to Aguirre v R [2010] NSWCCA 115 at [72]-[77] per James J, Simpson J and Barr AJ agreeing about the use that can be made of victim impact statements but sought to distinguish it on the ground that in that case no submissions had been made that the victim impact statement ought be given limited weight. Mr Higgins contended that victim impact statements ought not be used to determine the objective seriousness of the offence.
The Crown submitted in reply that substantial emotional harm was not put as establishing objective seriousness of the offence, but rather as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

The remarks on sentence

The sentencing judge recounted the Agreed Facts and referred to the medical evidence relating to the injuries sustained by the victim. Her Honour also referred to the medical reports tendered on behalf of the applicant. Her Honour referred to the applicant's criminal history and considered that his antecedents were not an aggravating factor; nor did they disentitle him from leniency.
Her Honour made findings about the cause of the applicant's offending conduct in the following terms: "The offence is one which is known colloquially as, "a glassing", an unprovoked attack on a complete stranger, an innocent patron of licensed premises, by an intoxicated offender who has armed himself with a beer glass. That said, however, I do accept that the offence was one which was a spontaneous response to a situation which arose but which was "misread" by the offender due to a recognised mental condition of Post-Traumatic Stress Disorder. Whilst that may well explain why the offender acted in the way he did, it certainly does not excuse his behaviour."
Her Honour made findings about the harm suffered by the victim as follows (exception is taken to these findings in the second ground of appeal): "That is perhaps of cold comfort to the victim in this matter who has sustained significant facial injuries and clearly has substantial ongoing emotional harm, which has impacted enormously upon him and his family. There have been considerable submissions about the use to which the victim impact statement can be put. It is a factor of aggravation which I do take into account in that way."
Her Honour found that the offence was unplanned and, in that respect, less serious. Her Honour considered a discount of 15% to be appropriate for the plea of guilty. The sentencing judge found the applicant to be "truly remorseful and contrite". Her Honour found: ". . . he has good prospects of rehabilitation if he continues to attend and participate in psychotherapy and moderates his consumption of alcohol. His evidence is that he is continuing to drink."
Her Honour found that, notwithstanding the applicant's post-traumatic stress disorder, general deterrence still had a part to play in the sentence since the state of his mental health did not make him an "inappropriate medium". Her Honour also said: "The offence, for which he is facing sentence, is a prevalent one. A cowardly offence, and the community is heartily sick of alcohol-fuelled violence."
Her Honour referred to the maximum penalty, the standard non-parole period and found that the offence fell below the mid-range of objective seriousness. She also confirmed that she had had regard to the impact of this violence on the victim "consistent with the authorities that bind me and which I have been referred to in submissions by the legal representatives".
Her Honour found special circumstances by reason of the post-traumatic stress disorder from which the applicant suffers and the need for additional assistance upon his release from custody. The sentence of six years and six months with a four year non-parole period reflects a ratio of 62% to take account of this finding.

The appeal

I propose to begin with the second and third grounds as they constitute allegations of specific error, whereas the first ground, manifest excess, is a conclusion, which may be informed by a finding of specific error but does not require specific error to be identified: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].

Ground 2: taking into account, as a matter of aggravation, the emotional harm suffered by the victim referred to in the Victim Impact Statement.

Ms Healey, who appeared for the applicant in this Court, accepted that the evidence that the victim had suffered substantial emotional harm was contained in a number of documents that were tendered by the Crown on sentence, namely: the statement by Mr Small that his wife read out in court and the reports of Ms Prentice and Ms Rotundo. These documents will be referred to collectively as the Victim Impact Evidence. Ms Healey referred to Aguirre v R at [72]-[77] per James J, Simpson J and Barr AJ agreeing about the use that can be made of victim impact statements.
Ms Healey submitted that there was no proper basis for her Honour's finding of aggravation on the basis of the evidence referred to above. Further, she contended that the sentencing judge did not detail what would normally be expected to be suffered by a victim of an offence of wounding with intent to cause grievous bodily harm and, accordingly, in what way the victim of this offence suffered harm over and above that threshold except for the reference to "substantial ongoing emotional harm".
Section 33(1) of the Crimes Act relevantly provides: "33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence."
Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act relevantly provides: "(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: . . . (g) the injury, emotional harm, loss or damage caused by the offence was substantial …"
Section 21A(2)(g) provision is of general application in that it applies to sentencing generally and not merely to sentencing offenders who have committed offences involving physical violence. It is of the nature of an offence under s 33(1) of the Crimes Act that the physical injury is substantial since the offence involves either wounding or grievous bodily harm (in this case the offence charged was of wounding). Accordingly, it would offend the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 to take into account the nature of the physical harm in sentencing for the offence. However, the emotional harm suffered by the victim of an offence under s 33(1) may not necessarily be substantial. Accordingly, it is an aggravating factor in such an offence if the emotional harm is shown to be substantial, being over and above that which would normally be expected to be experienced by a victim who had suffered wounding at the hands of another.
The degree of emotional harm suffered by the victim can be established by victim impact statements. Such statements have been described by this Court as "a particular species of evidence available to a sentencing judge": R v Wilson [2005] NSWCCA 219 at [25] per Simpson J, Latham J agreeing. A sentencing judge is entitled to receive and consider victim impact statements (as her Honour did in the instant case) under s 28(1) of the Crimes (Sentencing Procedure) Act as long as they comply with the regulatory requirements. Section 30A of the Crimes (Sentencing Procedure) Act permits a victim to read, or to have read out by another, a victim impact statement. In R v Tuala [2015] NSWCCA 8 at [45]- [84] Simpson J (Ward JA and Wilson J agreeing) comprehensively analysed the decisions of this Court in which the use to which such statements can be put has been considered.
Such statements can be used to establish the extent of the harm suffered by the victim and, accordingly, whether it amounts to substantial emotional harm within the meaning of s 21A(2)(g) of Crimes (Sentencing Procedure) Act. As Hunt CJ at CL said in R v Previtera (1997) 94 A Crim R 76: "In cases where the victim is still alive - that is, the victim directly injured by the offender's criminal act - victim impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that victim."
The only objection made on behalf of the applicant to the Victim Impact Evidence was a technical objection to Ms Prentice's report (that it did not contain the requisite endorsement) which was rectified on the adjourned date.
In Aguirre v R James J approved of the remarks made by Simpson J in R v Wilson [2005] NSWCCA 219 and said at [77]: "In the proceedings on sentence the victim impact statements were tendered and admitted without objection. No submissions were made in the proceedings on sentence that the use of the victim impact statements should be limited or that the evidentiary weight to be given to them should be limited. In these circumstances the sentencing judge could properly use the victim impact statements to establish the aggravating factor in s 21A(2)(g) [of the Crimes (Sentencing Procedure) Act]."
Although the applicant's counsel made submissions about the weight that could be accorded to the Victim Impact Evidence at the sentence hearing, he did not seek to cross-examine any of the authors of the reports. While s 30A of the Crimes (Sentencing Procedure) Act does not appear to envisage that the author of the statement will be cross-examined, the position might be otherwise where the author of a so-called victim impact statement is an expert, rather than a victim. Although Ms Rotundo's report was accompanied by a form referable to s 30 of the Crimes (Sentencing Procedure) Act and no submission was made that Ms Rotundo was not a qualified person within the meaning of reg 8 of the Crimes (Sentencing Procedure) Regulations 2010 (NSW), reg 11 provides that only one victim impact statement may be tendered in respect of each victim. In these circumstances Ms Rotundo's report may not have been a victim impact statement as such. It was, however, admissible as evidence from a qualified person on the impact of the incident on Mr Small. Accordingly, Mr Higgins could have required her for cross-examination. In any event, no such request was made.
There was, however, no impediment to Mr Higgins cross-examining either Ms Prentice or Dr McHugh, although the latter, while noting the psychological reaction, admitted that he was not qualified to comment on it. Accordingly, their evidence as to the emotional harm suffered by the victim stands unchallenged.
Although the applicant contended in this Court that her Honour did not specifically address the level of emotional harm that would normally be expected to be suffered by a victim of an s 33(1) offence, I do not consider that this was required in the circumstances of the present case, particularly in remarks on sentence delivered ex tempore. Mr Small's response was, in my view, plainly greater than one would expect, particularly where he has, as Dr McHugh opined, largely recovered from his physical injuries. The victim's continuing and apparently entrenched emotional reaction to the assault must be regarded as exceptional. At all events, it was, in my view, open to her Honour to find that Mr Small has suffered "substantial ongoing emotional harm which has impacted enormously on him and his family". Her Honour was obliged, in light of that finding, to take it into account as an aggravating factor, by reason of the mandatory wording in s 21A of the Crimes (Sentencing Procedure) Act.
For these reasons the second ground has not been made out.

Ground 3: disproportionate weight placed on the principle of general deterrence in circumstances where a causal nexus was found to exist between the applicant's mental illness and his offending behaviour.

The applicant contended that her Honour gave too much weight to general deterrence in circumstances where he was found to have "misread" the situation and to have construed the victim's conduct in approaching him to constitute, contrary to the fact, a threat of violence. Ms Healy submitted that, as the applicant's interpretation of the victim's benign act was caused by his post-traumatic stress disorder, her Honour ought not to have accorded so much weight to general deterrence, although she conceded that her Honour was obliged to take it into account.
The first difficulty with this submission is that the weight to be given to the various, and at times conflicting, purposes of sentencing was a matter for the sentencing judge and could not be determined as a matter of mathematics: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 476; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39]. It is not an error of law if the weight attributed to a particular consideration is too great or too little, unless the result is outside the bounds of a proper exercise of discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, at 41 per Mason J.
The second difficulty is that although general deterrence was a factor that her Honour took into account, one cannot reliably discern what weight was given to it or what impact it had on the length of the sentence. The reason for this is that sentencing is a process of "instinctive synthesis" (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75]) of several relevant factors, which may point in different directions.
The third difficulty with the applicant's submission is that a mental condition cannot be regarded as either mitigating or aggravating since it depends on the circumstances: it may, for example, diminish moral culpability and lessen the requirement for general deterrence but may increase the risk of future offending: R v Engert (1995) 84 A Crim R 67 per Gleeson CJ. The applicant's pre-existing post-traumatic stress disorder (exacerbated by intoxication) may have compromised his capacity to appreciate that the victim meant him no harm when he walked towards him in the beer garden and led him to misconstrue a friendly approach as an imminent attack. This, of itself, would tend to reduce the moral culpability of his acts, since, from the applicant's point of view, the assault was not an unprovoked act of violence on a blameless victim, although that was what it was as a matter of objective fact. However, a person who cannot reliably adjudge risk and who tends to act precipitately with violence against a non-existent threat when intoxicated poses a danger to the community. That the mental condition may have caused or contributed to the offence is the beginning, not the end, of the relevant inquiry.
For these reasons I do not consider the third ground to have been made out.

Ground 1: manifest excess

The maximum penalty for the offence is 25 years imprisonment. The standard non-parole period is seven years. These are relevant legislative guideposts: Muldrock v The Queen [2011] HCA 39; 244 CLR 120, at [27].
The starting point for the sentence imposed (before the 15% reduction for the plea of guilty) was seven years and seven months. Her Honour considered the objective seriousness of the offence to be below the mid-range.
Having regard to the relevant factors, including the nature of the offence, the substantial emotional harm to the victim, the need for general deterrence, the contribution of intoxication to the applicant's misapprehension of the victim's approach and the legislative guideposts referred to above, I am not persuaded that the sentence imposed is manifestly excessive. Accordingly, the first ground has not been made out.

Proposed orders

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

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: 14 April 2015

Crimes (Sentencing Procedure) Regulations 2010(NSW)

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