Nowak v R

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act

R v Cramp [2004] NSWCCA 264 R v Elyard [2006] NSWCCA 43 R v Jammeh [2004] NSWCCA 327 R v Murphy [2005] NSWCCA 182 CASES CITED : R v Solomon (2005) 153 A Crim R 32 R v Tadrosse (2005) 65 NSWLR 740 R v Youkhana [2004] NSWCCA 412 R v Way (2004) 60 NSWLR 168 The Queen v De Simoni (1981) 147 CLR 383

PARTIES: Krysztof Kowak Regina

COUNSEL: G Walsh (Solicitor) (Applicant) G Rowling (Crown)

SOLICITORS: Greg Walsh & Co (Applicant) S Kavanagh (Solicitor for Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/3846

BELL JA BARR J BUDDIN J

MONDAY 21 APRIL 2008 KRYSZTOF NOWAK v REGINA Judgment 1 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 maximum penalty for the offence is imprisonment for seven years. The applicant was sentenced to a non-parole period of 12 months with the total term being one of 3 years imprisonment. 2 The facts giving rise to the offence are not in dispute and can be briefly stated. The applicant and the victim were among a number of guests at a wedding ceremony and reception. During the course of the evening, friends of the applicant were involved in a disagreement with a man who was part of the bridal party. As the evening progressed, the applicant and three of his friends were asked to leave the reception by members of the families of both the bride and the groom. This followed a heated exchange in which friends of the applicant on the one hand, and the members of the families of the bride and groom on the other, had sworn at each other. 3 The offender and his three friends began walking down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700 ml glass Vodka bottle which, he maintained, was still sealed and full. The bride's father was walking behind the applicant and his friends in order to ensure that they left the premises. 4 As he reached the exit gate to the driveway, the applicant turned to face the victim who was in close proximity to the bride's father. The applicant then swung the glass bottle which he was holding and struck the victim with it. The glass bottle shattered upon impact with the victim's face. The victim sustained significant cuts to his face. The cuts began to bleed profusely and the victim's eyes filled with blood. They then blackened and closed. The victim also sustained a broken nose as a result of the blow to his face. 5 Two days later the victim was examined by a general practitioner who reported that he had "multiple injuries to the chest and face. His face was very swollen, with large bruises over his eyes, nose and cheeks. He had lacerations over his forehead, nose and cheeks which had been sutured in hospital." The victim was then referred to an ear, nose and throat specialist because he reported having difficulty breathing as a result of having had his nose broken. He was operated on and his nasal fractures were elevated and the septum was returned to its original position. It appears that the operation was a success although the victim was required to wear a plaster over his nose for a period of three weeks following the operation. The sentencing judge aptly described photographs of the victim as depicting an "horrific facial injury". 6 Six weeks after the incident, the applicant voluntarily attended Quakers Hill police station where he was immediately placed under arrest. He then participated in a recorded interview during which he admitted having smashed the bottle over the victim's face. He said that he regretted his actions and that if he had his time over again he would have done things differently. 7 The applicant was 21 at the time of the offence and 22 when he stood for sentence. He had been attending university and was within six months of completing his Bachelor of Science degree. He was also working part-time. He had no prior convictions and was otherwise of good character. A number of references attested to the fact that his conduct was completely out of character and that he had the on-going support of his family. 8 The applicant gave evidence during the course of the sentencing proceedings. He accepted that he was heavily affected by alcohol having, on his own admission, consumed 10 drinks of bourbon at the reception. He conceded that that was typical of the amount of alcohol that he consumed on social occasions. The sentencing judge was understandably concerned about that aspect of his evidence particularly as the applicant had informed an officer from the Probation Service, when questioned about the issue, that he was "adamant that he has never had a problem abusing alcohol". The sentencing judge nevertheless concluded that the applicant clearly had a problem with binge drinking. 9 The applicant gave evidence that he had done nothing himself to warrant being asked to leave the function. He gave evidence that as he and his friends were walking down the driveway, the groom's father and two of his friends were following them. He said that there was a lot of swearing and pushing. He said that at the end of the driveway he saw the groom's father grab his friend's father by the shirt. He also claimed to have been pushed before swinging the bottle. He again expressed his regret for his actions and acknowledged that what he had done was horrific. 10 Towards the end of the sentencing remarks her Honour made the following observations: There are a number of factors present which do aggravate the objective seriousness of the offence. They are, as I have already said, the use of the weapon to inflict the injuries, and the force used when using that weapon. Secondly, the extent of the injuries sustained, and I will not repeat what I said earlier about that. Obviously the extent of injury is an element of the offence. However, these injuries were not injuries not only requiring medical treatment, they were injuries requiring both medical and surgical intervention. So to that extent they are substantial, and it does affect the objective seriousness of the offence. Thirdly, the victim was unarmed and unable to protect himself, and in that sense he was vulnerable in the extreme.

11 As the applicant had first entered his plea in the Local Court, the sentencing judged extended to him a discount of 25% to reflect the utilitarian value of that plea. The sentencing judge also found that the applicant was genuinely remorseful for his actions and noted that he had expressed a willingness to make a personal apology to the victim. The sentencing judge concluded that the applicant was unlikely to re-offend and that his prospects of rehabilitation were good, particularly if he was able to curb his anger and his alcohol intake. Although her Honour rejected a submission that some order other than one entailing a full-time custodial sentence was appropriate she was prepared, for the reasons I have just identified, to make a finding of special circumstances which had the consequence that the normal statutory ratio was varied to produce the result to which I earlier referred. 12 The applicant relied upon the following grounds of appeal: 1 That the sentence imposed by the Learned Sentencing Judge was too severe having regard to the objective and subjective circumstances of the offence. 2 That the sentencing Judge erred in finding that there were aggravating features present including: 2.1 The use of the weapon to inflict the injuries and the force used. 2.2 The extent of the injuries sustained. 2.3 That the victim was vulnerable in the extreme. 3 That the Sentencing Judge erred in finding that there was no provocation on the part of the victim. 13 It is convenient to first deal with the ground that asserts that the sentencing judge erred in finding that three features of the case constituted aggravating factors.

The sentencing judge erred in treating as an aggravating factor the use of a weapon to inflict the injuries and the force used 14 As I have indicated, the sentencing judge found that there "are a number of factors present which do aggravate the objective seriousness of the offence. They are, as I have already said, the use of the weapon to inflict injuries and the force used when using that weapon." The weapon in question was the glass bottle. Section 21A(2)(c) of the Crimes (Sentencing Procedure) Act is in the following terms: the offence involved the actual or threatened use of a weapon 15 The court is enjoined of course from having additional regard to any such aggravating factor if it is an element of the offence: s21A(2). That expression has been interpreted to include a matter which would be regarded as an inherent characteristic of the offence: see R v Elyard [2006] NSWCCA 43. 16 The offence of which the applicant was convicted, which has since been repealed, was in the following terms: 35 Malicious wounding or infliction of grievous bodily harm (1) Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years. 17 It was contended that one of the elements of the offence is "by any means" and thus "the means by which the applicant wounded or otherwise inflicted grievous bodily harm upon the victim is not an additional aggravating factor". The short answer to the submission is that the expression "by any means" is neither an element nor an inherent characteristic of the offence. Indeed the fact that the legislature included that expression in the offence serves only to demonstrate that there are a very great number of ways or "means" by which grievous bodily harm may be inflicted. That being so, the sentencing judge did not fall into error in regarding the actual use of the bottle as a weapon as an aggravating feature. The court was referred to a number of authorities in support of this ground but none of them bear upon the question currently being considered. 18 This ground of appeal fails.

The sentencing judge erred in finding that the extent of the injuries sustained by the victim amounted to an aggravating factor 19 The sentencing judge found that "the extent of the injuries sustained" was a further factor which aggravated the objective seriousness of the offence. It was submitted that the sentencing judge fell into error in having regard to s 21A(2)(g) of the Act which is in the following terms: the injury, emotional harm, loss or damage caused by the offence was substantial 20 As it is clearly an element of the offence that grievous bodily harm was inflicted, it was submitted that an injury warranting that description would necessarily be substantial. 21 In support of that submission the applicant relied upon this Court's decision in R v Cramp [2004] NSWCCA 264. The offender in that case pleaded guilty to a charge of malicious wounding with intent to do grievous bodily harm after having stabbed the victim in the back causing very severe injuries to him. The victim underwent surgery and remained in intensive care for over a month. Spigelman CJ, with whom the other members of the court agreed, said: I note that his Honour also referred in his judgment to s21A(2)(g): that the injury caused by the offence was substantial. Although no objection was taken on this basis during the course of this appeal, it would appear to me that this aspect of his Honour's reasoning suffers from the same defect as that identified above with respect to s21A(2)(b). The offence under s33 requires the infliction of grievous bodily harm. Where that is an element of the offence, the injury is necessarily "substantial". Accordingly, I do not take into account, unlike his Honour, the degree of injury as an aggravating factor. (par 65) 22 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. 23 Having concluded that the extent of the injuries was a further factor of aggravation, her Honour then went on to say that "obviously the extent of injury is an element of the offence. However, these injuries were not injuries not only requiring medical treatment, they were injuries requiring both medical and surgical intervention. So to that extent they are substantial, and it does affect the objective seriousness of the offence." 24 It is not entirely clear what her Honour was endeavouring to convey in that passage. It may be that she was suggesting that the particular injuries which the victim sustained went beyond what would be expected to result from the commission of this type of offence: see R v Youkhana [2004] NSWCCA 412. In R v Solomon (2005) 153 A Crim R 32 Howie J, with whom Grove and Latham JJ agreed, said: [t]here may be cases at the margin where some judgment might have to be made about whether the severity of the effect of a particular offence on a particular victim is such that the offence should be considered to be aggravated. (at par 20) 25 The present case may have been of that type. But if that is the conclusion at which her Honour arrived, then one would have expected her Honour to have said so in clear and unambiguous terms before deciding to treat it as an additional feature of aggravation. I am not entirely persuaded that such a finding was, in any event, open on the evidence before the sentencing judge, particularly as no victim impact statement was made available which may have shed light on the matter. 26 For those reasons I am of the view that the sentencing judge has fallen into error and accordingly, I would uphold this ground of appeal.

The sentencing judge erred in finding that it was an aggravating factor that the victim was vulnerable in the extreme 27 The sentencing judge held that the third feature of aggravation was that "the victim was unarmed and unable to protect himself and in that sense he was vulnerable in the extreme". The sentencing judge in making those remarks was purporting to rely upon s 21A(2)(l) which is in the following terms: the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant) 28 The fact that the victim was unarmed when struck by a man wielding a bottle was a highly relevant factor in an assessment of the objective gravity of the offence. It is true that he was rendered vulnerable to the applicant's attack. All victims are, to some extent at least, vulnerable. But that is not the sense in which the expression is to be understood in the present context. 29 In R v Tadrosse (2005) 65 NSWLR 740, Howie J, with whom Grove and Hall JJ agreed, said: Before s 21A(2) was enacted, the common law recognised that there were certain categories or classes of persons who needed to be especially protected because they were particularly vulnerable to criminal offences generally or a criminal offence of a particular type. Of course the purpose of sentencing is to protect the community generally and this is achieved by each of the aims of sentencing such as deterrence, denunciation and rehabilitation. But an aggravating factor is something that operates over and above the general considerations that indicate that a particular class of offending should generally be dealt with in a particular way. It may well be the case the persons generally in the community would be vulnerable to a proficient fraudster armed with forged documents such as a driver's licence because it is common to rely upon such documents as proof of identity. But that fact does not give rise to an aggravating factor under s 21A(2)(l). That provision is concerned with the weakness of a particular class of victim and not with the threat posed by a particular class of offender. In R v Williams [2005] NSWCCA 99 this Court held that a sentencing judge was in error in taking into account as an aggravating factor under the section that the victim of a manslaughter offence was vulnerable. Buddin J with whom the other members of the Court agreed stated:

[40]……………The sentencing judge concluded that the deceased was vulnerable, as I understand his Honour's reasons, upon the basis that the applicant was a powerful man who had violent tendencies, whereas the deceased did not have those characteristics. That was clearly a matter that was relevant to an assessment of the objective gravity of the offence. It should not however have been treated as a factor which further aggravated the offence.

[41] In any event all victims of a homicide can be said to be vulnerable. In my view, s 21A(2)(l) is not directed to vulnerability in that generalized sense. Indeed, the examples set out in the subparagraph suggest that it is vulnerability of a particular kind that attracts its operation.

The Judge in the present case was in error into taking into account in any manner that the victims of the applicant's offences were vulnerable. (pars 25-7) 30 It should also be observed that the Crown did not suggest, during the course of making submissions on sentence, that this particular matter was an aggravating factor. That of itself, in my view, is a very good reason why the sentencing judge should have been loathe to find that it was and in particular, to conclude that the victim was vulnerable "in the extreme". 31 In my view, this ground of appeal has also been made out.

The sentencing judge erred in finding that there was no provocation on the part of the victim 32 The sentencing judge declined to find that "there was some minor form of provocation". Her Honour of course had the benefit of observing the applicant give evidence, an advantage which is denied to this Court. It is apparent from her Honour's remarks that she was of the view that whatever occurred at the exit of the premises was only what one would expect when one group of people was escorting another group from the premises and ensuring that they did not return. It is also clear that her Honour was of the view that the applicant's perception of events was to be assessed against the background of his state of intoxication. That being so, it is apparent that her Honour was not prepared to uncritically accept everything that the applicant said in his evidence. 33 In any event, this ground of appeal represents no more than a challenge to a finding of fact. In my view, this ground of appeal must inevitably fail particularly as it was well open to the sentencing judge to arrive at the conclusion which she reached. Even if her Honour had been in error, then such provocation as there might have been, could have had only a minimal impact upon the appropriate sentencing outcome.

The sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence 34 In my view, this was a most serious offence of its kind. As the sentencing judge observed it was "a cowardly attack upon an innocent victim" which was entirely "unwarranted". The blow, which the offender administered, must have been of very considerable force to have first caused the bottle to shatter and then to have caused the injuries which the victim sustained. Despite the fact that the offence represented a spontaneous, rather than a premeditated outburst of anger, and even after having given full weight to the applicant's favourable subjective case, I am not persuaded that her Honour exceeded the legitimate range of her sentencing discretion in imposing sentence. I would reject this ground of appeal. 35 Notwithstanding the two errors that I have identified, which to my mind in the present context, at least, are of an essentially semantic kind, I have concluded that no other sentence was warranted in law and ought to have been passed: s 6(3) of the Criminal Appeal Act 1912. 36 I propose that leave to appeal be granted but that the appeal be dismissed. 37 BELL JA: I agree 38 BARR J: I also agree. 39 BELL JA: The orders will be those proposed by Buddin J.

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