Osborne v R

The Facts of the Offence

1. The applicant was arraigned before his Honour and a jury panel on 18 March 2014. The indictment contained two counts, being one count of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 and, in the alternative, one count of reckless wounding.
2. The applicant entered a plea of not guilty to the more serious offence and a plea of guilty to the alternative charge. The jury returned a verdict of not guilty to the principal charge on 26 March 2014. Although there was general agreement as to the facts of the matter, it fell to his Honour to find the facts upon which the applicant was to be sentenced. No complaint is made by the applicant concerning his Honour's conclusions of fact.
3. The following summary is taken from the sentencing judge's Remarks on Sentence ("ROS").
4. The offence occurred on the evening of Saturday 13 April 2013 at a hotel in Clovelly. The applicant and the victim of the offence, Jai Hitchcox, had separately attended the Clovelly Hotel, and each was drinking with friends in an upstairs bar area, adjacent to a dance floor.
5. At around nine o'clock that evening the applicant went to the lounge bar to buy a round of drinks. Also at the bar purchasing drinks was Jarrod Farlow and Lauren Grdusiak. Both were friends of Mr Hitchcox. Although the evidence of precisely what was said was disputed, the applicant had some conversation with Ms Grdusiak, and subsequently Mr Farlow, which became, at least, tense.
6. The victim approached the bar and, concluding that there was some sort of altercation between the applicant and his friends, stood immediately behind the applicant and demanded of him, "Mate, what's the fucking problem". The sentencing judge regarded that initial interrogative as "indicative of aggression", rather than exclusively connected with the defence of his friends.
7. There was some further conversation between the victim and the applicant, the content of which was disputed.
8. After that the applicant, who had purchased drinks and had a schooner glass of beer in each hand, turned away from the bar. Without warning, he changed direction and stepped directly towards Mr Hitchcox, who had also moved away from the bar. Without any further exchange between the men the applicant raised both hands and forcefully pushed the schooner glasses into the victim's face, with one glass smashing on impact into either side of Mr Hitchcox's face. The assault was captured by security cameras in operation in the hotel.
9. There was a short struggle between the men before the applicant fled, running towards an exit door, down a flight of stairs, and out of the hotel. He was pursued by security guards and apprehended a short distance away in Clovelly Road.
10. Still in the bar area, Mr Hitchcox stumbled and fell to the floor. Hotel patrons gave what assistance they could and an ambulance was summonsed. The victim was taken to hospital. He had sustained a number of lacerations to both sides of his face and neck, and fragments of glass were embedded in the wounds.
11. Upon examination treating doctors noted a number of injuries: a four centimetre wound to the right side of the face which had led to arterial bleeding; a second wound of similar size to the right aspect of the lip; two superficial lacerations respectively on the right and left sides of the throat; two wounds to the left side of the mouth; and a "W" shaped broad tear running from the left side of the nose to the left cheek, with the central component of the tissue of the left nostril torn. The injuries to the victim were described as "significant", and there was extensive facial scarring as a result of them.
12. The victim, who gave a victim impact statement to the sentencing court, said that he suffered from disturbed sleep, negative thoughts, anxiety and irritation as a result of the offence. He had been obliged to leave the job he had held for over three years, and he had lost his position as a professional junior rugby league footballer with one of the clubs in the National Rugby League. His future as a professional footballer had been set back by twelve months. A nascent modelling career had been jeopardised or ended by the facial scarring with which Mr Hitchcox had been left.
13. Having been apprehended by security officers the applicant was soon after arrested by police and taken to Maroubra Police Station. He agreed to be interviewed, and admitted having "thrown" a glass into the victim's face. He told the interviewing officers that Mr Hitchcox and Mr Farlow had threatened him and given him "grief", and that Mr Hitchcox, whom he described as "bolshie" and "intimidating", had pushed and prodded him.
14. When asked by the police to explain his attack upon Mr Hitchcox, the applicant said that he had recently separated from his partner who had returned to her home in Canada; he was lonely; tired after a difficult week; and was feeling upset about a recent soccer injury. He blamed Mr Hitchcox for provoking him by his "quite unnecessary" conduct.
15. Both men had been drinking, with the victim well affected by alcohol at the time, and the applicant regarded by police as moderately affected.

The Seriousness of the Offence

1. The sentencing judge concluded that the applicant, in attacking the victim with the two schooner glasses, was acting from frustration or anger, after a degree of provocation had been extended to him.
2. His Honour found that, although it was objectively not so, the victim had considered his friends to be under threat from the applicant, and he had intervened, as he thought, in their defence. His intervention was aggressive in tone, and the sentencing judge accepted that the applicant perceived it as such. Whilst his Honour did not conclude, as the applicant urged, that the victim in fact poked or prodded the applicant, he did find that Mr Hitchcox had waved his hand and fingers close to the applicant's face, and that the applicant regarded this, not unreasonably, as provocative.
3. The sentencing judge found that the applicant became increasingly annoyed at Mr Hitchcox, and agitated by the events and, losing control of his temper, lashed out at the victim. His Honour concluded that the use of two glasses as weapons aggravated the seriousness of the offence.
4. His Honour found that the applicant had moved towards the victim without warning, and struck him to both sides of his face intentionally, and being fully aware that he was holding a beer glass in each hand. Consistent with the verdict of the jury the sentencing judge held that, whilst the applicant had not intended to cause grievous injury, he had been reckless as to that possibility.
5. Alcohol consumption by both protagonists played a role in the commission of the offence.
6. The injuries occasioned to Mr Hitchcox were extensive, required suturing, and left "significant scarring" to the face and neck. There had been adverse consequences for the victim's equanimity, and for his employment prospects as a model and footballer.
7. His Honour found that the applicant's loss of control of his temper had been precipitated by his "fractious" emotional state, and by the display of aggression from the victim. Although the sentencing judge accepted that the applicant reasonably perceived that the victim's conduct was provocative, he concluded that, "[…] that provocation in my view in no way justified the serious assault which was actually perpetrated and was not a reasonable response to the provocation which was offered. Neither the norms of society nor the principles of the criminal law permit or countenance a very violent response to a comparatively low grade provocation." (ROS 13)
8. His Honour noted that the applicant's conduct had been "very serious". Although the applicant had submitted that a sentence other than a custodial term was appropriate, the sentencing judge concluded, "I consider that the sudden, unprovoked, and serious assault using two beer glasses is a very serious offence which in my judgment warrants no less than a term of full-time custody." (ROS 13)
9. Having referred to the sometimes oppositional factors set out in s 3A of the CSP Act, the sentencing judge noted that, despite the many features in the applicant's favour, his offence was "extremely serious" (ROS 16), and only a sentence of full-time custody could adequately address the criminality of the offence.

The Applicant's Personal Circumstances

1. The applicant's subjective case was a compelling one, and the sentencing judge made a number of findings favourable to the applicant. He set out the evidence in detail in his Remarks.
2. At the time of sentencing the applicant was aged 35 years; he was 34 years old when the offence was committed. He had no criminal history.
3. Born in England, the applicant travelled to Australia in 2006 for a vacation, but he stayed on, and became a permanent resident. He retains the support of his family in England.
4. The applicant completed tertiary studies in England, graduating with a Bachelor of Science in Multimedia Technology. He has undertaken further studies in Australia, and was in his second year studying for a diploma in arboriculture when sentence was imposed upon him. In a reference before the sentencing court his arboriculture teacher spoke of the applicant as an honest, conscientious, and hardworking man of steady disposition.
5. The applicant was in permanent employment at the time of sentence, working as the Operations Manager for a Sydney arboreal firm. He was highly regarded by those with whom he worked, the principle of the firm having given evidence of the applicant's good character during the trial.
6. Other character testimonials before the sentencing court were uniformly positive, with the applicant described by the respective authors as responsible, caring, decent, reliable, and a "gentle soul". The applicant was regarded as extremely remorseful by all those who provided a reference or report to the court.
7. In a report prepared for the court by a Community Corrections Officer the applicant was noted to have accepted responsibility for his conduct, and demonstrated insight into it. He was assessed as at low risk of re-offending.
8. The applicant told the Community Corrections Officer that at age 18 he began drinking alcohol on a regular basis, in some periods of his life consuming as many as ten "pints" of beer each week. Whilst a resident in Australia the applicant had a lower intake of alcohol, drinking about four standard drinks each week. He lessened his alcohol intake further after the commission of the current offence, recognising the role that alcohol had played.
9. In February 2013 the applicant's partner of four years left Australia for Canada, ending the couple's relationship. The applicant attributed his mood on the day of the offence, at least in part, to the breakdown of this relationship.
10. After being charged with the offence the applicant sought treatment from a clinical psychologist and, as at the date of sentence, he had attended some 15 sessions of cognitive behavioural therapy directed towards the low mood and feelings of depression and anxiety that beset him when awaiting the finalisation of the criminal proceedings. A report from the psychologist who had treated the applicant was tendered to the sentencing court on his behalf.
11. The psychologist reported that the applicant exhibited features consistent with a diagnosis of "Major Depressive Disorder, Single Episode, Moderate", in partial remission. The applicant had complained of feelings of worthlessness, an inability to concentrate, and being stressed and anxious about his future. He presented as remorseful for his conduct, and motivated to address his "issues".
12. The sentencing judge concluded that the applicant was insightful into his offending conduct and understood both the link between alcohol consumption and the offence, and the need to put strategies in place to prevent any reoccurrence of such aggression.
13. His Honour found that the applicant was genuinely remorseful, and had displayed feelings of grief and guilt concerning his conduct. He accepted that the conduct was entirely out of character, and regarded it as most unlikely that the applicant would re-offend, assessing the applicant's prospects of rehabilitation as both good, and optimistic.

Other Matters Relevant to Sentence

1. As was submitted by both parties to be appropriate, the sentencing judge gave the applicant the benefit of a 25% reduction on the sentence that would have otherwise applied, because of the early plea. Although the matter had proceeded to trial in relation to the s 33 offence, the applicant had indicated prior to committal that he was guilty of the s 35(4) alternative offence. The plea of guilty with respect to that charge was thus an early one with considerable utilitarian value.
2. His Honour gave consideration to a number of authorities relied upon by both the applicant and the Crown. The applicant had provided the sentencing court with the decisions of Wilson v R [2009] NSWCCA 73 and R v Towers [2000] NSWSC 420. The Crown relied upon R v Miria [2009] NSWCCA 68. The sentencing judge referred also to Sayin v R [2008] NSWCCA 307, and particularly to [47] of that decision, which is, in part, as follows, "The offence, popularly known as "glassing", is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty."
3. Mr Sayin had pleaded guilty to and been sentenced for an offence of maliciously inflicting grievous bodily harm contrary to the former s 35(2) of the Crimes Act 1900. That offence carried a maximum sentence of imprisonment of seven years. The applicant had become irritated with another patron who was talking during a live comedy performance in the bar of a Darlinghurst hotel. When the patron did not leave the bar as the applicant demanded of him, the applicant punched him once to the face. He was holding a spirit glass at the time. The glass smashed against the victim's face, and he sustained a number of significant lacerations, together with two badly chipped front teeth and a fractured nose. The judge at first instance had imposed a sentence of five years imprisonment, with a NPP of three years. Absent the discount to reflect the plea of guilty, the starting point of the sentence would have been an overall term of five years and nine months.
4. On appeal this Court concluded that the starting point of the sentence was so close to the maximum penalty that it was excessive, in that the offence could not be said to be in the worst category of matters of its type, particularly as the injuries fell well short of the sort of terrible and permanent injury that is encompassed by grievous bodily harm.
5. In R v Towers Grove J sentenced the offender for one count of malicious wounding contrary to the former s 35(a) of the Crimes Act 1900, an offence which carried a maximum penalty of imprisonment for seven years, and which was included in Table 1 of Schedule 1 of the Criminal Procedure Act 1999 as an offence able to be dealt with summarily unless the accused or prosecutor elected to have the matter tried on indictment. Dealt with summarily a two year sentence of imprisonment was the applicable jurisdictional maximum.
6. The offender had originally been charged with the victim's murder but the Crown ultimately accepted a plea to the s 35(a) offence in full discharge of the indictment. In the circumstances, his Honour was conscious that, but for the more serious charge, the offender would have received summary jurisdiction. The offender had inflicted a number of cuts to the victim, with his Honour concluding that seven separate blows were landed upon the victim, whilst the offender was holding a piece of broken glass.
7. The offender had spent ten months in custody on remand for murder. Having regard to that period of pre-sentence custody, Grove J imposed a three year good behaviour bond upon the offender.
8. R v Miria was a Crown appeal against sentence imposed upon the respondent for a charge of maliciously inflicting grievous bodily harm with intent contrary to s 33 of the Crimes Act 1900 as it was at the material time, in 2008. The maximum penalty specified for that offence was 25 years imprisonment. A SNPP of seven years applied. The offence had occurred at a hotel, when the victim was endeavouring to leave. He had inadvertently bumped into another patron, and some words were exchanged. The respondent, who was not involved in the exchange, then moved towards the victim and swung his arm at him. He was holding a beer glass in that hand. The victim turned to avoid the blow, but was struck on the back of his head and to his neck. The glass shattered. Other than sharp pain, no injury is referred to in the judgment, although the plea of guilty to the offence establishes that grievous bodily harm was occasioned.
9. At first instance, the sentencing judge imposed a sentence of two years imprisonment, suspended upon entering what was referred to in the judgment as "a recognisance to be of good behaviour," more correctly, a good behaviour bond, for two years.
10. The Crown appealed to this Court on a number of grounds, including a ground complaining that the sentence was manifestly inadequate. This Court concluded at [22] that, "[…] allowing for all the aspects of the strong subjective matters found by his Honour, a sentence of 2 years imprisonment suspended from operation is so far below an appropriate range for offending in these circumstances that the ground that the sentence is manifestly inadequate should be upheld."
11. On re-sentence, and noting that the sentence would be less than it would have been if imposed in circumstances other than after a successful Crown appeal, this Court sentenced the respondent to a NPP of two years imprisonment, with a balance of term of two years.

Ground 1: The Sentence was Manifestly Excessive

1. Although pleaded as a complaint of manifest excess, the applicant argued that the sentencing judge erred in "giving too much significance to the objective seriousness of the offence, and to general deterrence, and inadequate weight to the extremely strong subjective case" (applicant's written submissions at p.7).
2. With a starting point of sentence of four years imprisonment prior to the reduction allowed for the utilitarian value of his plea, the applicant argued that the sentence was excessive.
3. In response, the Crown contended that the applicant's offence was a very serious one, occasioning serious injuries. The strength of the applicant's subjective case was acknowledged, but the Crown submitted that all relevant features had been taken into account by the sentencing judge, and the sentence imposed was one within the proper exercise of the sentencing discretion.

Consideration

1. The imposition of sentence following criminal conviction is a discretionary judgment. An appeal against sentence is an appeal against the exercise of the sentencing judge's discretion. The relevant considerations on appeal are those identified in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at [504]-[505].
2. Is specific error shown? That is, was there an error of principle? Did the sentencing judge allow extraneous or irrelevant matters to guide or affect the decision? Did the sentencing judge fail to consider some material matter? Was there a mistake as to the facts?
3. If no specific error can be identified, is the sentence imposed unreasonable or plainly unjust, that is, either manifestly excessive or manifestly inadequate?
4. The applicant pleads manifest excess and, although no specific error has been identified, three complaints are made by him.

His Honour Gave Too Much Significance to Objective Seriousness

1. The applicant contends that the sentencing judge gave too much significance to the objective seriousness of the offence.
2. The process of evaluating a sentence to be imposed is an instinctive one. As was noted in Ali v R [2010] NSWCCA 35 at [34], "The assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue; R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13]; R v PGM [2008] NSWCCA 172 at [26]."
3. A sentencing judge is required to identify all of the features relevant to the crime and the offender, have regard to any sentencing principles that may be applicable, consider the significance of each matter, and then make what is a value judgment as to the appropriate sentence given all the factors of the case.
4. What weight is to be given to the objective seriousness of a particular offence is a matter for the individual sentencing judge, although it is axiomatic that it must always be a matter of considerable importance.
5. Only by giving proper attention to the seriousness of the crime can a sentencing court fulfil its obligations pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999, in particular, to ensure adequate punishment of the offender, to make the offender accountable, to denounce the offender's conduct, and to recognise the harm done to the victim of the crime and to the community.
6. This was a very serious example of an offence of reckless wounding.
7. In making an assessment of the gravity of the applicant's crime, his Honour had regard to the immediate background to it, that being the altercation between the applicant and Mr Farlow, and the aggressive approach of Mr Hitchcox, the latter including Mr Hitchcox's act of waving his fingers in front of the applicant's face during the brief verbal exchange between the two. His Honour accepted that the applicant, not unreasonably, would have regarded this conduct as provocative.
8. The sentencing judge (correctly in my view) noted that the small degree of provocation involved could in no way answer for the applicant's response. The degree to which the provocation could have mitigated the offence was plainly small.
9. Whilst this conduct preceded the assault by the applicant upon Mr Hitchcox, the two men had moved apart and away from each other at the point at which the applicant turned without warning and thrust the beer glasses, which were used as weapons, into the victim's face. This was done, his Honour concluded, with force and intending to cause hurt, reckless as to the possibility of harm being occasioned.
10. The injuries were extensive, with significant facial scarring resulting from the injuries.
11. The element of recklessness for the purposes of s 35(4) of the Crimes Act 1900 is made out by proof of intention or knowledge: s 4A Crimes Act 1900. In the applicant's case, his Honour concluded that the applicant intentionally struck the victim in the face and neck with the two schooner glasses knowing that hurt would be occasioned (ROS p.12). This conclusion marks the offence as one involving a very high degree of recklessness.
12. The "wound" that resulted from this forceful assault was very serious, particularly in the context of what is required for proof of that element of the offence. A wound is established upon proof of a breach of the sub-cutaneous or interior layer of the skin: R v Smith (1837) 8 Carrington & Payne 173. To be a "wound" for the purposes of an offence contrary to s.35(4) a laceration of no great significance would suffice. In R v Shepherd [2003] NSWCCA 351 for example, this Court accepted, at [32], that a "split lip" from a punch to the mouth is a wound, albeit one of a technical nature.
13. Although it was not necessary for his Honour to rank or categorise the applicant's crime by reference to a notional range of gravity (Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [29]) it is clear that he considered it to be a serious example of a s 35(4) offence. Given the deliberation and force with which the applicant intentionally thrust the two full glasses into a particularly vulnerable part of his victim's body, the face and neck, and having regard to the number, depth, and severity of the wounds that were inflicted, that characterisation was well open to his Honour.
14. Having made the assessment he did, the sentencing judge was obliged to give the gravity of the crime significant weight in the sentencing exercise.
15. It is difficult to see how "too much" significance could be given to this aspect of the sentencing process.

His Honour Gave Too Much Significance to General Deterrence

1. In his written submissions, at [11], the applicant conceded that, "What have been referred to as offences involving a 'glassing' have attracted significant and appropriate attention by this Court, particularly in relation to the need for sentencing courts to give effect to denunciation and general deterrence by stern sentences."
2. Indeed, so frequent have such offences become that they have attracted the colloquial title used by the applicant of "glassing". In Sayin, cited at [46] above, this Court made it clear that sentencing courts "must impose very severe penalties". The same statement has been adopted and repeated in other cases involving the use of a glass as a weapon: see R v Spooner [2009] NSWCCA 247 at [20], for example.
3. Whilst his Honour concluded - in the applicant's favour - that specific deterrence was not a relevant consideration, he was very conscious of the need for the sentence imposed to import a significant element of general deterrence.
4. Arguably, in the seven years since Sayin was handed down, and despite the frequency with which similar statements have been subsequently made by the courts, the frequency with which offences of this nature occur has not diminished, particularly when they occur, as here, in licensed venues, where those involved are affected by alcohol.
5. There remains a continuing need for the courts to emphasise the horror with which the community views the use of a glass as a weapon, particularly when the glass is wielded with force at the head or face of another. Such offences must be strongly denounced, and others deterred from committing like crimes by the imposition of stern sentences.
6. I am not able to conclude that the sentencing judge gave the need for a sentence reflective of the principle of general deterrence disproportionate or erroneous weight.

His Honour Gave Inadequate Weight to the Extremely Strong Subjective Case

1. The starting point for consideration of this aspect of the applicant's complaint must be to again note the discretionary nature of the sentencing exercise. Matters of weight are very much matters within the province of the sentencing judge: Majid v R [2010] NSWCCA 121 at [40].
2. In his Remarks the sentencing judge set out the applicant's subjective case in detail. He referred to the fact that the applicant, at age 35 years, had no criminal convictions, and gave this considerable weight. His Honour also noted the strong evidence of positive good character from those who knew the applicant, and the applicant's strong employment history. He concluded, in the applicant's favour, that the applicant was insightful, remorseful, and was very unlikely to offend against the criminal law again. The applicant's offence was noted to be out of character and his prospects of rehabilitation were assessed as optimistic. The strong subjective case was the primary consideration in his Honour's conclusion that special circumstances existed such that the NPP was fixed at two-thirds of the overall sentence.
3. It is evident that his Honour gave careful and even anxious consideration to both the form of sentence, and to its term. That consideration was prompted in no small part by the recognition that the applicant was, in every respect other than in the commission of this offence, a highly regarded and valuable member of the community.
4. I do not accept that his Honour did not give adequate weight to the applicant's subjective case.

Is the Sentence Manifestly Excessive?

1. It was his Honour's difficult to task to arrive at an appropriate sentence in a matter where there were conflicting and contradictory elements which all bore upon the determination of the sentence to be imposed. The seriousness of the offence demanded heavy punishment, whilst the applicant's previously unblemished character and good prospects required the extension of a measure of leniency and amelioration of sentence.
2. His Honour was obliged to take into account all relevant factors and to arrive at a sentence which took proper account of each. As was noted in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [27], "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies."
3. There being no "correct" sentence, it is not sufficient that this Court might have exercised the discretion differently: Lowndes v The Queen [1999] HCA 19; 195 CLR 665 at [15]. It is for the applicant to demonstrate that there has been error of the kind identified in House v The King, even if only apparent in an "unfair and unjust" sentencing outcome.
4. For my part, whilst the sentence may be regarded as a stern one, I do not regard error as having been established

ORDERS

1. I would grant leave to appeal, but dismiss the appeal.

Amendments 25 September 2015 - Date of judgment on coversheet corrected to read "24 September 2015". 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: 25 September 2015