Owen v R

Court of Criminal Appeal (NSW)|2022-09-26|Before: Garling J, Adamson J, Adams J

Judgment

GARLING J: Tyson Tauteka Owen ("the applicant") seeks leave to appeal against the sentence imposed on him by Haesler SC DCJ ("the Judge") on 19 August 2021.
The applicant was sentenced to a term of imprisonment of 3 years with a non‑parole period of 18 months for a single offence contrary to s 35(2) of the Crimes Act 1900 of reckless infliction of grievous bodily harm.
An offence against s 35(2) of the Crimes Act has a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years imprisonment.
In sentencing the applicant, the Judge allowed a reduction in the sentence which would otherwise have been imposed of 25% to take into account the utilitarian value of the applicant's early guilty plea. This discount was not the subject of any dispute between the parties.
The Judge sentenced the applicant on the basis of an agreed set of facts, to which it will be necessary to refer in due course.
The sentence imposed by the Judge was fixed to commence on 3 August 2021. It will expire on 2 August 2024. The non-parole period expires on 2 February 2023.
A Notice of Intention to Appeal was filed on 23 August 2021, and a Notice of Appeal was filed on 1 July 2022. The applicant relied on two grounds of appeal. They were that: 1. the learned sentencing Judge erred in failing to make any proper assessment of the objective seriousness of the offending; and 2. the learned sentencing Judge erred in failing to have regard to the applicant's disadvantaged upbringing when assessing moral culpability, as required by Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

Relevant Facts

Neither the applicant nor Nkululeko Moyo ("the victim") were known to each other at the time of the offence. The victim left a hotel at about 2am and walked with a group of friends in a westerly direction along Crown Street, Wollongong. The applicant and his friends, who were of Māori or Pacific Islander origin, were standing outside a nightclub in that street. A racist remark was made by one of the applicant's associates to one of the members of the victim's group, which resulted in a brief verbal and physical altercation between an individual from each group. This brief altercation was broken up, and the victim and his friends moved further west down Crown Street.
About 40 minutes later, CCTV recorded that the victim's group were still standing on the Crown Street footpath when the initial aggressor from the applicant's group of friends approached them and extended his hand. The victim accepted it and shook his hand.
Immediately, however, another verbal and physical altercation took place between the initial aggressor and another of the victim's companions. The victim tried to diffuse the situation. As he was trying to calm things down and break up the two individuals who were having a fight, the applicant and more of his companions arrived quickly on the scene. It seems that the applicant, having put his drink down, then moved into the melee - apparently to try and break up the fighting. The victim was also trying to do so as he pushed the original aggressor away from his friend. As the victim raised his hand to push the original aggressor a second time, the applicant stepped towards him and struck the victim to the side of his head with a closed fist. The victim fell to the ground and did not move.
Initially the rest of the participants in the melee moved along Crown Street. The victim, who had fallen to the ground, did not move. In due course an ambulance was called by bystanders and the victim was taken to Wollongong Hospital.
An emergency craniotomy for the evacuation of an extradural haemorrhage, insertion of an intraparenchymal pressure monitor and cauterisation of the middle meningeal artery was performed on the victim. He was placed in a medically induced coma. He remained at Wollongong Hospital for a week before being transferred to the Liverpool Hospital for brain injury rehabilitation.
The victim was diagnosed with a fracture at the base of his skull and a left temporal extradural haematoma in the left temporal lobe with significant associated haemorrhagic contusions in the right temporal parietal lobe, as well as evidence of cerebral oedema.
For a significant period of time, and at least into the second half of 2021, the victim continued to receive treatment and rehabilitation for the severe traumatic brain injury caused by the applicant's assault.
A neuropsychology assessment noted that whilst the victim had areas of relatively intact functioning - such as his intellectual ability - there were areas of impairment of his cognition and with respect to learning and remembering. It also noted that his speed of information processing was low and that his visual scanning was impaired. There were indications at that time of poor cognitive flexibility and reduced verbal planning and problem-solving skills.

Proceedings on Sentence

The proceedings on sentence, which occurred on 13 August 2021, were relatively brief. A Crown bundle, which included medical records in relation to the victim, the victim's impact statement and the CCTV footage, was put before the Court. A Sentencing Assessment Report was also tendered by the Crown. As well, written submissions were provided by the Crown.
On behalf of the applicant, written submissions were provided to the Court together with a number of documentary exhibits.
The first of those exhibits was a letter to the Court from the applicant. The letter indicated that the applicant accepted full responsibility for his conduct, including the long-lasting impact that it had on the victim. The applicant told the Court that he was ashamed and embarrassed about what he had done and that it was completely out of character.
The letter included these paragraphs: "Without diminishing the seriousness of the offence, at the time of the incident I was experiencing multiple stressors in my life. The breakdown of my 10 year marriage, no longer living with my two little girls and the severe impact of COVID‑19 on my business and my employees had a drastic impact on my ability to think logically. In hindsight, I should not have been out drinking. This incident and the flow-on effects it has had on so many people has forced me to look at myself and seek assistance through a psychologist. I am learning new ways to cope with stress and frustration. I will continue to engage in whatever rehabilitative interventions are necessary to ensure that this cannot happen again."
The letter went on to express the applicant's deep regret for his actions and to offer his sincerest apologies to the victim.
The applicant's estranged wife also wrote to a letter to the Court. The applicant's wife noted that she had provisional registration as a psychologist and had been employed by the Department of Justice for 8 years, working closely with victims of violent crime. She noted that she had been married to the applicant for the past 10 years and that, notwithstanding their separation, they continued to share an amicable relationship - including harmoniously co‑parenting their two young daughters.
Her letter included this: "[The applicant] has experienced a significant amount of trauma, grief and loss throughout his life. [The applicant] has grown up around crime, substance abuse and poverty. Despite his upbringing, [the applicant] has forged a life as a productive and safe member of the community. I have witnessed the remorse that [the applicant] rightly feels, evidenced by his guilty plea. Furthermore, I have witnessed the shame that [the applicant] feels and will continue to feel for the rest of his life, knowing that his daughters have been impacted by his poor decisions. … "
Further references were included which testified to the applicant's good character.
The Crown submitted that the offence fell above the mid-range of objective seriousness based upon the following matters:

the attack involved a significant degree of violence towards a victim who did not provoke the attack and who was repeatedly attempting to de‑escalate the situation and break up the fight;
the offence, which was one of alcohol-fuelled violence, occurred in the early hours of a Sunday morning in the context of racial remarks made by one of the applicant's group towards one of the victim's friends;
the applicant approached the victim and punched him in the face with a closed fist with such force that it caused the victim to fall backwards, hitting his head hard on the concrete, and immediately rendering him unconscious;
the assault was directed to a vulnerable part of the victim's body in circumstances where the victim did not see the blow coming and the punch therefore carried a significant risk of serious harm which did in fact eventuate;
the applicant did not desist in his violent behaviour and after the assault, became involved in a brawl with another of the victim's friends; and
the applicant did not render any assistance to the victim or check on his welfare. After a short period of time, the applicant and his group ran away from the scene.

The Crown drew attention to the nature and seriousness of the injuries and the effect which the assault had had on the victim as described in his Victim Impact Statement.
The Crown submitted that, in all of the circumstances, the only appropriate penalty was a sentence of full-time imprisonment.
Counsel for the applicant made oral submissions on sentence. Counsel submitted that, notwithstanding the seriousness of the victim's injuries, the applicant's conduct was towards the lower end of objective seriousness, particularly because it was limited to a single punch to the side of the victim's head, there was no weapon used, and that the applicant's actions were reckless as opposed to intentional.
Counsel for the applicant submitted that a term of imprisonment of less than 2 years, to be served by way of Intensive Corrections Order ("ICO"), was the appropriate penalty which ought be imposed.
Counsel also submitted that special circumstances ought be found and that a departure from the statutory non-parole period ratio was appropriate.

Remarks on Sentence

The sentencing Judge accepted the applicant's letter to the Court as a "sincere statement of regret and apology". His Honour noted the applicant's family and community relationships, and that the Sentence Assessment Report had concluded that the applicant had only a low risk of re-offending.
In light of Ground 2, it is necessary to refer to the sentencing Judge's findings with respect to the subjective case for the applicant. He said: "[30] His personal history is uncontroversial and was succinctly summarised in his solicitor's written submissions: MFI-2. The [applicant] is currently 30 years old. He grew up in New Zealand, the second eldest of 11 siblings. His parents struggled with alcohol and addiction issues his entire life. He grew up without a lot of basic necessities, such as food, clothing, heating and medical care. As a result of his parents' addictions, the [applicant's] aunty and grandmother took care of him when his parents were not able to. His aunty and grandmother are both described as strong, female role models whom he loved and respected. When the [applicant] was in his early 20s, his mother died suddenly of an asthma attack. Not long after, his aunty and grandmother died. The [applicant] lost three women who had raised him within a few years. He feels that he has not properly dealt with that grief, nor has he sought any professional assistance. Despite this difficult upbringing, the [applicant] has been able to stay away from heavy alcohol use and drugs. He has been able to successfully run a business. The [applicant] has taken a strong interest in his young siblings' upbringing in an attempt to show them a different way of life. He is currently living with a friend and that friend's wife. … [32] [The applicant] started life with few advantages. He has made something of himself; he is generally pro-social. Like many others he enjoys a drink and has no history of problematic drinking. Had it not been for this incident, he would have continued his life as a respected and valued member of our community."
In his remarks, the sentencing Judge went on to consider the submissions made by counsel for the Crown and for the applicant. His Honour noted that the written submissions were comprehensive, and then said this: "[39] … The parties do not differ significantly on matters of principle. I do not intend to explicitly refer to the matters raised, but I have considered and addressed them in coming to my determination as to the appropriate sentence."
His Honour noted the different submissions with respect to the appropriate penalty: a full-time imprisonment on the one hand or an ICO on the other.
His Honour then said this: "[43] After the submissions ended, I indicated that although I would give the matter anxious consideration, the objective seriousness of the crime and the need for appropriate victim vindication required a sentence of more than 2 years."
His Honour referred to authorities which emphasised that violence on the streets of the kind seen in these proceedings needed to be addressed by sentences that carried a significant degree of general deterrence. He also indicated other objects of sentencing including the proper punishment of an offender.
His Honour then said this: "[46] Those first two points have particular resonance here. A proper sentence must reflect the harm done to a victim of the community and mark the Court's view of the seriousness of the crime. It should also let other wrongdoers know the retribution which will fall upon them if they commit similar crimes … "
Having made those remarks, his Honour noted the plea of guilty, that the appropriate discount was 25% and pronounced the sentence.

Ground 1

This ground suggests error on the part of the sentencing Judge because of a failure by him to make any proper assessment of the objective seriousness of the offence.
The applicant submitted by reference to the remarks under a heading "Objective Seriousness" in the Judge's Remarks on Sentence, that although the Judge had recorded accurately the submissions made on behalf of the parties, the only reference made by him to any factor which may cast light upon his assessment of objective seriousness was to be found in this statement: "[21] [The applicant] is to be sentenced for his recklessness. He is to be sentenced for the seriousness of the harm his reckless action caused - and that harm is the measure that distinguishes many acts of criminal violence from others."
The submissions point out that there is no other remark which attempts to adjudicate between the competing submissions about the objective seriousness and to express a concluded view about that.
The applicant relied upon the judgment of Simpson J in R v Campbell [2014] NSWCCA 102 at [27] in which her Honour emphasised: "… the assessment of objective seriousness is, and has always been, a critical component of the sentencing process."
The applicant also drew attention to, and relied upon, a statement made by Beech‑Jones J in Gal v R [2015] NSWCCA 242 at [39], where his Honour said that: "… a sentencing judge must … at a minimum … state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offending conduct."
The applicant submitted that by reference to the discount for the plea of guilty, the sentence had a notional starting point of 4 years against a maximum penalty of 10 years which suggested that the Judge did not accept the Crown's submissions. However, he submitted that such an exercise would tend to be unreliable, particularly having regard to the determination of appropriate weight to be given to all of the various relevant factors in the sentencing process - including the applicant's subjective case. Put differently, the level of objective seriousness was one of a number of factors, albeit a significant one, which carried weight in a sentencing process.
The Crown submitted that the Court ought approach this ground of appeal by reading the Sentencing Remarks as a whole and, in so doing, it submitted it was sufficiently clear that the sentencing Judge had given careful consideration to all of the relevant factors which bore upon the objective seriousness of the offending. The Crown relied upon the decision of Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581, where a similar ground of appeal had been dismissed. The Crown drew attention to the statement of Hoeben CJ at CL in that case at [56], which is in the following terms: "While it is true that his Honour did not in term assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. Whilst it may have been preferrable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. … While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
The Crown submitted that this was not a case which involved a bare recitation of the Agreed Facts by the sentencing Judge, but that it involved an evaluation of the objective seriousness. The Crown further submitted that the sentencing Judge must have assessed the objective seriousness of the offence to be sufficiently serious as to require him to impose a term of full-time imprisonment.

Discernment

His Honour delivered his Remarks on Sentence within a week of the proceedings on sentence. His Honour is operating in an environment where reasons are often delivered quickly and in the midst of a busy workload. Due allowance has to be made for such matters.
The issue which confronted his Honour, namely the determination of the objective seriousness of the crime, i.e., not just a remark about the seriousness of the offence generally because, as his Honour noted, such early morning street violence occasioned in circumstances of excessive alcohol intake, is a serious matter, but also as R A Hulme J said in R v Van Ryn [2016] NSWCCA 1 at [137]: "… It is one thing to refer to the general proposition that [the offence was] a serious crime; it is another to identify the relative seriousness of the case at hand."
Given the contested issue before his Honour, and that the objective seriousness of the offence formed a significant part of the evaluation of what would be an appropriate sentence, in my view this was a case in which his Honour was obliged to resolve the disputed issue as to where this particular offence fell on the spectrum of objective seriousness. Neither the fact that his Honour, having determined that a sentence of full-time imprisonment was necessary to be imposed, nor the length of that sentence which he in fact imposed, are sufficient to enable any inference to be drawn about where this particular offence fell on the relative scale of offences of this kind.
The sentencing Judge carefully considered the factors relevant to an assessment of the objective seriousness of the offence. However, his Honour did not consider those factors in combination, nor did he make any assessment of or reflect upon the seriousness of the defence. There is simply no conclusion drawn, nor is there any obviously accurate method by which one might infer a finding.
I am simply unable to conclude that the sentencing Judge implicitly made findings about the objective gravity of the offence, nor can I conclude that the factors which were relevant to that assessment were weighed properly.
I am satisfied that the applicant has demonstrated error with respect to this finding.

Ground 2

In light of the fact that the Court needs to proceed to a consideration of a resentence for the applicant because of the error identified in Ground 1, it is not strictly necessary to deal with Ground 2.
However, some short remarks are appropriate. I have above extracted the remarks which the Judge made, containing findings about the applicant's disadvantaged upbringing. I also set out the only sources available for those remarks, in addition to the assertions contained in written submissions by counsel for the applicant. No one suggests error in these findings.
I note that counsel for the applicant in this Court accepted that nowhere during the proceedings on sentence was his Honour referred to the decision in Bugmy, nor was any submission made that such was the deprivation and disadvantage of the applicant's early childhood, that his Honour ought to take such circumstances into account as contributing to an assessment of a reduced moral culpability for the offence.
The applicant's counsel properly conceded on this application that the Judge was not provided with any expert report of a kind usually seen, which provided a comprehensive review of the applicant's early disadvantage and its effect on the applicant's maturity and development.
It is also clear that the applicant himself, in the letter that he wrote to the Court, identified the factors relevant to his offending as those arising in the context of his relatively recent separation from his wife and the stressors which such separation created. The applicant himself did not refer to any early childhood disadvantage in his letter to the Court, nor did he claim that it had had any adverse effect upon him.
This Court is being asked to find that, in the absence of direct or compelling evidence of early childhood disadvantage, in the absence of any reference to the principles contained in Bugmy pointing to how the Court ought appropriately take any early childhood disadvantage into consideration, and in the absence of any submission that the Court ought take such disadvantage into account, and notwithstanding that the applicant's own letter to the Court relied upon matters as being the context for his conduct which did not include and were temporally significantly separated from his early childhood, the sentencing Judge was obliged to take account of what were described as "Bugmy factors" and that, by failing to do so, his Honour fell into an error of law.
In support of this ground, the applicant relied on the decision of this court in Kliendienst v R [2020] NSWCCA 98, as authority for the proposition that where there is evidence before a sentencing judge which would suggest that an offender has had a deprived upbringing or else has been the victim of profound disadvantage in childhood, then, notwithstanding the absence of reliance on those factors, a court is nevertheless obliged to have regard to them.
As is clear from the judgment of N Adams J, particularly at [61] and [68], Kliendienst was a most unusual case which turned on its particular facts. There was significant uncontested evidence, including from an expert psychologist who dealt extensively with the offender's background, including identifying the available diagnoses of a variety of mental health conditions, and also noted the similar mental health conditions of some of the offenders' siblings. Early family history and consequent mental health issues were central to the submissions on sentence. And the sentencing judge discussed them.
In my view, it is an error to extract any broad principle of universal application from Kliendienst of the kind here contended for. It is a matter for the parties to identify and articulate the matters which are to be relied upon as being relevant to sentence. If a party does not do so, there can ordinarily be no later reliance, on appeal, upon the failure of the judge to take into account on sentence that which a party did not ask the Court to.
This ground is wholly without merit. It is not an error of law for the Judge in this case to fail to include in his reasons or Remarks on Sentence any reference to a matter about which there was little or no evidence, no submissions based upon little evidence and no reason to think that any matter of early childhood disadvantage had any relationship whatsoever to the events in question.
As the Crown rightly submitted, the observations of Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81], where his Honour said: "… the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made" are entirely applicable here.
I would not uphold this ground.

Resentence

However, because the applicant has established error on Ground 1, it is necessary to resentence the applicant.
It is appropriate at the outset to make an assessment of the objective seriousness of the offence. In so doing, the subjective factors specific to the applicant are put to one side.
Here, the criminality consisted of a single punch delivered recklessly which caused a serious brain injury to the victim. The offending conduct occurred early in the morning, in the streets of the Wollongong CBD where the victim and his friends had been out to have a good time.
A verbal dispute erupted, and continued intermittently. Two people - one from each group - engaged in a short physical fight which the victim attempted to break up. It was at that time that the applicant stepped in and delivered one punch. His involvement was unnecessary. He caught the victim unawares and hit him in a vulnerable area of his head. The applicant did not then render assistance, nor call an ambulance. He simply walked away.
In my assessment, the circumstances which are the subject of the Agreed Facts, lead me to conclude that the offending was serious and falls into the mid‑range of objective seriousness for offences of this kind.
In addition to the materials which were before the Judge, the applicant's affidavit sworn 29 August 2022 was put before this Court. The applicant noted that his time in custody had been very difficult particularly because he commenced his term of imprisonment in the midst of the COVID-19 lockdowns. For the first month of his term of imprisonment, the applicant was locked in his cell where he was required to shower, eat and sleep, as well as live, for 24 hours a day; he had no access to a telephone or any time in an exercise yard
It was not until his third month of custody that he was allowed an hour of yard time per day and an intermittent phone call to his family. The applicant noted that the first contact visit he had with his family was 7½ months into his sentence.
The applicant also noted, due to restrictions on movement caused by COVID‑19, that although he was categorised as a minimum-security inmate, he was incarcerated in a maximum-security area and was unable to be correctly allocated in terms of custodial placement because movement within the system was being restricted.
The applicant's anxieties and concerns and the consequences of his incarceration are set out in that affidavit, which was not challenged. Attention is appropriately to be paid to them, and account is to be taken of them.
The applicant presents a strong subjective case. He has no past criminal history of any significance and was regarded, rightly, by the Judge as being entitled to a measure of leniency because of his prior good character. He has made significant contributions in the community. The Sentence Assessment Report is generally favourable, and the applicant is at a low risk of reoffending. I agree with the Judge's remarks, as noted earlier in this judgment, that the applicant's early childhood had been disadvantaged, but that he had risen above that disadvantage and made a positive contribution in the community.
The effect of childhood deprivation and disadvantage must necessarily vary from individual to individual. So too does the relevance of such disadvantage vary in its relationship to the offending under consideration. There is no doubt, as a matter of principle, that a background of said deprivation can affect an assessment of the moral culpability of an offender even though it may not have a direct causal connection to the offending: Paterson v R [2021] NSWCCA 273 at [31]; Khan v R [2022] NSWCCA 47 at [10]-[11] per Beech-Jones CJ at CL.
In considering the applicant's subjective case, whilst his childhood disadvantage is a matter before the Court, it does not warrant any reduction of the applicant's moral culpability for the offending which occurred.
Allowing full weight to his early childhood disadvantage, I would not be inclined to reduce the applicant's moral culpability for the offence because of that background.
In this resentence process, notwithstanding the applicant's favourable subjective case, the Court must have regard to the purposes of sentencing. Here, there is a need for a punishment which reflects the principal of general deterrence and, importantly, also recognises the harm done to the victim. As well, denunciation of the conduct of the applicant requires attention. Ultimately, in considering the resentence of the applicant, the Court needs to ensure that any penalty properly reflects the gravity of the offence.
The applicant is entitled to have taken into account that conditions of his imprisonment are onerous because of the COVID-19 effects.
Taking all of those matters into account in the instinctive synthesis reasoning process, I have come to the conclusion that any sentence which I would impose would exceed that imposed by the Judge and, accordingly, no lesser sentence than that imposed by the Judge is warranted.
The appeal against sentence should be dismissed.

Orders

I propose the following orders: 1. Grant leave to the applicant to appeal against his sentence. 2. Dismiss the appeal.
ADAMSON J: I have had the benefit of reading a draft of the reasons of Garling J. I agree with his Honour's reasons and the orders which his Honour proposes. Like his Honour, when conducting the process of re-sentencing, I have arrived at a sentence which is longer than the one imposed. In these circumstances, I agree that, while leave to appeal ought be granted, the appeal ought be dismissed.
N ADAMS J: I agree with the orders proposed by Garling J for the reasons provided by his Honour.

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: 26 October 2022

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