O'SULLIVAN v R [2006] NSWCCA 368 | Case summary

Monday, 27 November 2006 R v David Dennis O'SULLIVAN Judgment 1 BEAZLEY JA and HISLOP J: We agree with the orders proposed by Hulme J and generally with his Honour's reasons. 2 However, we refrain from adding to the jurisprudence concerning the relationship between remorse and a plea of guilty. The determination of that issue, in our opinion, is not necessary for the determination of this appeal. 3 HULME J: This Applicant for leave to appeal pleaded guilty to a charge under s35(1)(b) of the Crimes Act that on 24 December 2004 he maliciously inflicted grievous bodily harm upon Benz Renades. The maximum penalty provided for by the section is 7 years imprisonment. 4 For the offence, Judge Knox, after what was, if I may say so, a careful and thorough review of the evidence and the issues that arose, sentenced the Applicant to imprisonment for 4 years and 8 months including a non-parole period of 3 years and 6 months, periods that reflected a discount of 12.5% for the plea of guilty. 5 The offence was commenced by the Applicant, in a state of considerable intoxication forcing his way into the room of the victim in a boarding house in which both resided, kicking him, then going to the front door of the premises, locking it and then returning to the victim who had rung for help and tried to block the Applicant's re-entry. 6 In that the victim was unsuccessful, perhaps not surprisingly given that the Applicant was about 6 feet and powerfully built and the victim 5 feet 4 inches and slight. Despite pleading with the Applicant, the victim then suffered what the judge correctly described as a vicious, prolonged and unprovoked attack in the course of which the Applicant inflicted facial lacerations, chest injuries and a severe traumatic brain injury. The last mentioned injury has turned the victim from being a functioning, working member of society with accounting and business qualifications and skills and with prospects into someone who has lost his sense of smell and now suffers from, among other things, defective memory and concentration, depression, social isolation, personality changes and defective bladder control and an uncertain future. 7 This was not the first occasion that the Applicant has been unable, or unwilling, to control himself. He has thrice been convicted of common assault, twice of assault occasioning actual bodily harm and 3 times of driving with an excess concentration of alcohol in his blood, apart from a number of other offences. At the time of the subject offence he was on a bond for driving a vehicle recklessly, furiously or in a speed or manner dangerous to the public. 8 The grounds of appeal are that his Honour erred in taking into account as an aggravating feature that the offence was committed in the victim's home, the point being made that it was in a boarding house in which both resided, that the sentence and the non-parole period are manifestly excessive and that his Honour erred in not finding special circumstances. 9 The first of these grounds was abandoned. In amplification of the second, attention was drawn to the Judicial Commission statistics that indicate that the head sentence is in the top 7.5%, and the non-parole period in the top 3.4%, of sentences imposed between October 1998 and September 2005 for offences of the type. These percentage figures approximately double if one has regard to only those offenders who were sentenced to full time imprisonment. 10 The Court's attention was also directed to an extensive summary of dozens of other cases involving offences under s35 including a number of cases in this Court where there had been serious injury. These cases, the sentences imposed and a brief description (by me) of the circumstances include:- Coleman MT 6 m Severe permanent brain damage - Crown appeal - out of character 20/2/95 AT 1 yr O'Kane MT 2 yr Six fractures and blindness in one eye of 3 month old child - Crown appeal - severe psychiatric/ psychological/drug/alcohol problems 9/3/95 AT 4 yr Leslie MT 1 yr Severe internal organ injuries - Crown appeal - exceptional subjective circumstances 10/3/95 AT 1 yr Clark MT 1yr Extremely serious permanent injuries - Crown appeal - strong subjective case 27/3/95 AT 18 m Mangion MT 3 yr Paraplegic - no lengthy premeditation but worst case - Crown appeal 25/5/95 AT 2 yr Kalache MT 4 yr Extensive burns needing lifelong treatment - victim doused in petrol and set alight - worst case - plea N G - no contrition 30/6.95 AT 16 m Hatch MT 6 m Blindness in one eye - poking of steel rod through car window under provocation - good character - Crown appeal. 21/2/96 AT 12 m Rainbow MT 2 yr First & second degree burns due to application of steam iron - also blows to head - permanent scarring - 21 months old child - no premeditation - strong subjective case 20/12/96 AT 18 m Kama [2000] 110 MT 2 yr PD Permanent brain injury - stomping on defenceless victim - premeditated - offender nearly 18 & immature - Crown appeal A Crim R 47 AT 1 yr Toomalati [2000] NSWCCA 105 3 yr bond Blindness in one eye - punching and stabbing with car keys - provocation and exceptional subjective circumstances - Crown appeal Bett [2001] NSWCCA 482 NPP 2¼ yr PD Blindness in one eye - broken nose and cheeks - headaches - strong subjective case - delay in Crown appeal FT 3 yr Galati [2002] NSWCCA 366 FT 3 yr PD Permanent brain injury - one unprovoked karate kick - immediate remorse - strong subjective case - delay in Crown appeal and other defaults by Crown Morrison [2003] NSWCCA 89 NPP 3¼ yr Permanent severe brain injury - felled victim & kicked him 4 or 5 times while unconscious - powerful subjective case FT 5 yr DSW [2003] NSWCCA 322 NPP 2½ yr Permanent severe brain injury - unprovoked attack including jumping on victim's head - offender 16½ - Crown appeal dismissed. FT 4 yr

11 It was submitted that given there was not "any real planning or premeditation", no weapon, the Applicant had only been to gaol once previously for a week, and that at age 33 he was diagnosed for the first time with attention deficit disorder, and there were grounds for thinking that this condition may have contributed to his conduct, the offence was not sufficiently serious to place the penalty so far up the scale. 12 I disagree. Judge Knox found that the offence (just) did not fall into a worst category of offences under the section. The Applicant was fortunate to have the benefit of such a finding. After all, cases can fall into that category although worse ones can be imagined - see Veen v R (No 2) (1987-1988) 164 CLR 465 at 478. He was fortunate also that Judge Knox allowed him a discount for his plea. Although of course it is rare that that does not occur, it must be remembered that when an offence is sufficiently serious, a judge is entitled to decline to allow such a discount - see R v Thomson and Houlton (2000) 49 NSWLR 383 at [157-8]. For my part the unprovoked, as it seems to me, wrecking of the victim's life called for at least the sentence that was imposed. 13 In arriving at that conclusion, I do not ignore the results of the cases such as those to which I have referred. Nor did Judge Knox who referred to a number of them. Some clearly do support the argument advanced on behalf of the Applicant. It is fair to say that I find the result of some surprising and they have caused me to reconsider carefully my initial reaction to the challenge to the Applicant's sentence. However, having done so, I adhere to at least that part of the view I originally formed to the effect that the sentence was not excessive, and certainly not so to a degree that would justify the intervention of this Court. In this latter connection it must be remembered that there is a significant amount of discretion in sentencing and minds can reasonably differ as to the appropriate result in a particular case. 14 In this connection it may also be observed that in R v Morrison, a number of the earlier cases to which I have referred and in which relatively light sentences were imposed were relied on. There Studdert J, with the concurrence of Smart AJ, also looked to not simply a comparison of injuries and sentences but whether the sentence imposed in the particular was outside the sound exercise of discretion. 15 There is however one error in his Honour's reasons to which I would refer because it is not infrequently to be seen in matters coming before this Court. The error is in his Honour's remark that "Inherent in the plea of guilty … is some expression of remorse". A plea of guilty is consistent with remorse but, particularly given the practical benefits it generally affords - almost invariably a discount off the sentence that would otherwise be imposed and commonly the dropping by the Crown of a more serious charge - it is always a question whether it was remorse or those benefits or perhaps both that inspired such a plea. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477. "(An) inference may be made only as the most probable deduction from the established facts … " (my emphasis). Here the Applicant's plea was entered only after there had been some debate as to the admissibility of evidence and some indication that Judge Knox's views on that topic were adverse to the Applicant, and at a time when the Applicant was facing not only the charge to which he pleaded but one far more serious and which, in light of the plea the Crown was willing to abandon. Naked self-interest was at the very least as likely an explanation for the plea as remorse and, particularly given the timing of events, in my view the more probable explanation. 16 I do not forget that the significance of a plea of guilty to the issue of remorse was adverted to in R v Thomson & Houlton (2000) 49 NSW LR 383 at [3-4], [117-8] and [139]. At [4] there is a quotation from remarks in Siganto v R (1998) 194 CLR 656 at [22-3] wherein there is a statement to the effect that "a plea of guilty… is usually evidence of some remorse on the part of the offender. At [117-8] the Chief Justice with the concurrence of 4 other judges of this Court said:- "117. Furthermore, the plea is, of itself, equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case a plea does not indicate genuine remorse or contrition. Indeed, even a plea of not guilty to a particular offence may be consistent with genuine remorse as to the effect of the offender's particular conduct, acknowledged to constitute a lesser offence, with respect to which the accused is not, or not then, charged. 118. The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse." 17 I confess to some difficulty in reconciling the first sentence of [118] with the first three sentences in [117] although I suspect that in [118] the Chief Justice was intending to direct attention to the nature or quality of the expression rather than to positively contradict what he had said in the preceding paragraph. Be that as it may, my view is as I have indicated in the paragraph referring to Holloway v McFeeters, a view which I regard as consistent with the remarks in [117] of R v Thomson & Houlton which I have quoted. 18 In support of the claim that Judge Knox should have found special circumstances, attention was paid to remarks of his Honour that the Applicant "needs substantial and close supervision", that a clinical psychologist whose report was tendered had said that professional assistance was necessary and the author of the Pre-Sentence Report had considered that the Applicant was suitable for a medium/high level of intervention by the Probation and Parole Service. It was submitted that there were "circumstances which demonstrated the need or desirability for the applicant to be subjected to an extended period of conditional release subject to supervision on parole" - see Lett v R (unreported, CCA, 27 March 1995). 19 However there was also a need for the Applicant to be sentenced to a substantial period of custody. In the same sentence in which Judge Knox remarked as to the Applicant's need for supervision, his Honour observed that he remained a risk to the community. The offence and his history demonstrated that considerations of personal deterrence loomed large. The injury to the victim and the circumstances of the offence indicated that so did retribution. There is no error in his Honour's failure to find special circumstances or to increase the parole period at the expense of the non-parole period. 20 In my view the Applicant should have leave to appeal against sentence but the appeal should be dismissed.

O'SULLIVAN v R

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