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[2013] NSWCCA 274
Court of Criminal Appeal (NSW)
2013-09-13
Gleeson JA, McCallum J, Schmidt J, Mr P, Callum J
Original judgment source is linked above.
Judgment 1GLEESON JA: I agree with Schmidt J. 2McCALLUM J: I have read in draft the judgment of Schmidt J. I agree that ground 1 should be rejected, for the reasons her Honour has stated. As to ground 2, I agree with her Honour's conclusion that the jury's verdict cannot be impugned to the extent that it may have rested on joint criminal enterprise. I would respectfully not join in her Honour's conclusion that the jury ought to have entertained a reasonable doubt as to the primary Crown case, that it was the appellant who wielded the weapon that wounded Mr Waters. On the strength of my consideration of the whole of the record of the trial, I consider that it was well open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty on that direct basis. In my respectful opinion, this is a case in which any measure of doubt emerging from a review of the transcript is quintessentially of the kind capable of being resolved by the inestimable advantage enjoyed by the jury in seeing the manner in which the answers were given, absorbing the many subtle cues a transcript does not record and debating those matters amongst themselves in the jury room. In my assessment, the weaknesses in the evidence relied upon by the appellant in support of this ground are of the kind in respect of which those advantages cannot be supplanted by a sober consideration of the words said, as recorded in a transcript. My conclusion on that issue is fortified by the fact that no such doubt was excited in the mind of the judge who presided over the trial and heard the same evidence. His Honour's reasons for being satisfied beyond reasonable doubt that it was the appellant who struck the victim substantially reflect my own reasons for reaching the same conclusion, based on all of the evidence. 3Since mine is a minority view, it is not necessary to consider the appeal against sentence except on the premise accepted by the majority, namely, that the Crown failed to establish that it was the appellant who wielded the weapon that wounded Mr Waters. On that premise, I agree with Schmidt J as to the appeal against sentence, for the reasons her Honour has stated. I agree with the orders proposed by Schmidt J. 4SCHMIDT J: On 10 February 2012 a jury convicted the appellant of two offences, the first of affray (s 93C of the Crimes Act 1900) and the second of wounding Bernard Waters with intent to cause him grievous bodily harm (s 33(1)(a)). The offences were committed on the evening of 20 June 2010 in Tamworth. The appellant does not appeal his conviction of the affray. He does appeal his conviction of the s 33 offence and also seeks leave to appeal the sentence King DCJ imposed upon him for both offences. 5After a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the sentence King DCJ imposed for the s 93C offence was a fixed term of 18 months imprisonment commencing on 8 February 2012 and expiring on 7 August 2013. For the s 33 offence his Honour imposed a non-parole period of 4 years commencing 8 August 2012 and expiring on 7 August 2016, with a balance of term of 2 years commencing 8 August 2016 and expiring 7 August 2018. 6The maximum penalty for the s 33 offence was 25 years imprisonment. A standard non-parole period of 7 years applied to that offence under s 54A(1) of the Crimes (Sentencing Procedure) Act. The maximum penalty for the s 93C offence was 10 years. 7The appellant did not give evidence either at trial or on sentencing. That there had been a violent affray outside the home of one of the witnesses, Ms Jessica Hawke, on the evening of 20 June was not in contest, but the appellant's role was. 8Various witnesses not only identified the appellant as having been involved in the affray, but also as the person who had wielded the weapon with which Mr Waters was struck on the head. It was the reliability of that identification which was in issue.
Grounds 9The grounds of the conviction appeal in relation to the s 33 offence are: "Ground 1 The trial erred in his directions to the jury regarding the alternative charge of reckless wounding in company.[sic] Ground 2 The verdict in relation to the charge of wound with intent to cause GBH charge was unreasonable and incapable of being supported by the evidence.[sic]" 10The conviction appeal is governed by s 6(1) of the Criminal Appeal Act 1912 which provides that the Court of Criminal Appeal "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". 11This provision was considered in M v The Queen [1994] HCA 63; (1994) 76 A Crim R 213, where Mason CJ, Deane, Dawson and Toohey JJ observed at 216: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 12In Libke v R [2007] HCA 30; (2007) 230 CLR 559 it was explained at [113] that the phrase 'open to the jury' meant 'whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.' 13In SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 the majority explained: 13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 14The ground of the sentence appeal is: "Ground 3 Should all the grounds against conviction be unsuccessful, the Appellant will on the date of the hearing apply for leave to appeal against severity of sentence on the ground that the sentence imposed was manifestly excessive and/or that it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds the subject Count 1 [sic]" 15The Crown's case was that even if it was concluded that it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wound which Mr Waters suffered, the sentence would not be disturbed, because the Court would not be satisfied that any lesser sentence was warranted in law (see s 6(3) of the Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]).
The Crown concedes an error in sentencing 16While not raised on the sentencing appeal, at the hearing the Crown raised an error which it had identified. It appears that the appellant had been granted bail, which was revoked when his bail was breached, after he became involved in a family dispute in which he was involved in an altercation with one of his daughters, over answering a subpoena which required her to give evidence at the trial. He became intoxicated and had to be treated in hospital, after putting his fist through a window. The hearing also had to be delayed, until he was sufficiently sober to give instructions. 17He was held in custody, bail refused, for a period of some two weeks prior to being sentenced. This was not drawn to his Honour's attention on sentencing. It was properly accepted that if it had been, his Honour would have taken the period so spent in custody into account when fixing the date of commencement of the sentence imposed on the appellant. 18In the result it was accepted that this error meant that the appellant should be re-sentenced by this Court. Otherwise the Crown's position was that the appeal would be refused and the sentence imposed not further disturbed.
The evidence 19At trial the parties agreed that during the affray Mr Waters had suffered a 10cm full thickness laceration to his scalp which required suturing and that he also sustained bruising to his right back, right chest and left knee. It was also agreed that the laceration constituted a wound at law. 20Mr Sampson and Mr Peterson had been at Ms Hawke's house on 19 June, the day before the affray. She lived there with her son and two friends. The house was located on the corner of Sussex and Bourne streets, opposite a park. It had a yard which was fenced by a colorbond fence, which on Ms Hawke's evidence was not damaged before the affray. 21Mr Sampson's evidence was that on 19 June they were in the front yard of the house when the appellant drove past in a car with a number of other people, including his sister Fiona Prince and his nephew Michael Prince and some children. He called out to Mr Peterson 'Go and get your uncles, your fathers, or whatever for me, I'll fight them and all that if youse want to carry on'. Mr Peterson, who knew the appellant because he had gone out with one of his daughters for a few weeks, 'bit back'. Mr Sampson also knew the appellant, because his aunt used to go out with his brother. The next day they saw the appellant in the park across the road from Ms Hawke's house arguing with a girl, who he thought was the appellant's daughter. Mr Sampson's evidence was that Mr Peterson began mouthing off at him, being cheeky. The appellant walked away. 22Mr Peterson had been in rehabilitation in the time since the affray and did not have a clear memory of that night, but corroborated aspects of both Mr Waters' and Mr Sampson's evidence. He did remember that he had gone out with the appellant's daughter for a few weeks and that his argument with the appellant was about their nephews 'rowing' and fighting. Initially he denied saying anything to the appellant, but later said that he said something that 'ticked me off' and that he then yelled 'well I'll meet you in the middle, you want me to meet you in the middle'. He also said that later, while he was kicking back at Ms Hawke's house, that there was yelling and that on 20 June he went to meet up with the appellant in the park to 'have a go', but that it 'didn't work out the way it was meant to'. 23That evening Mr Waters, Mr Sampson and Mr Peterson were present with a number of others at a gathering in the yard of Ms Hawke's house, where a fire was burning. Inside the house were Ms Hawke and her friends Jamie-Lee Hawkins, Nyari Jackomos and Bianca Kedwell. They were watching movies and not drinking. 24Mr Waters and others who were involved in, or present during the affray described what they saw that night. Various of the witnesses gave an account of having seen people, including the appellant and Mr Peterson, in the park beforehand. That identification was not in issue on appeal. 25The evidence was that the street lighting was operating normally that night and that there was a very bright spotlight on a pole in the park, which lit it up and shone back to Bourne St. Police attended at about 10.30pm. The attending constables variously described the light in the park as 'quite bright' (Constable Murray), but in the immediate area of Bourne Street, 'poor' (Constable Rachford). Constable Parsons' evidence was that the light was sufficient for her to see the people there. They found the fence damaged, with panels missing and a lot of glass, a chain and a knife on the road, as well as other weapons in the vicinity. 26Ms Hawke's evidence was that an outside backdoor light was on, which lit up the backyard, which was also lit by the fire. Inside kitchen lights were also shining into the yard. The only witness who described it to be dark, was Ms Kedwell. 27The affray broke out after an altercation between the appellant and Mr Peterson in the park. It was not disputed that Mr Waters' head injury was inflicted during this affray, when he was struck on the head with a weapon variously described by other witnesses as a machete and a sword. That weapon was not found. 28The affray was variously described as having involved two groups of men, who spent a considerable time throwing bricks, bottles and sticks at each other. On Ms Kedwell's evidence, the violence lasted for some 15-20 minutes, during which Mr Waters, who was in the yard, was attacked by the appellant and others with him. He fell to the ground when one of them struck him with the weapon which lacerated his head. The appellant relied on Ms Kedwell's description of the assailant, to support his case that the Crown had not established beyond reasonable doubt that it was he who had inflicted this wound. 29Mr Waters was not able to identify who hit him on the head, although he identified the appellant as part of the group who attacked him, in the statement which he gave to police that night and in his evidence. His evidence was that he went to Ms Hawke's house that evening with his nephew, Mr Dale Sampson. A group of 15 to 20 people were gathered there, including his brother, Mr Ernie Peterson. People were outside drinking near the fire and out the front. His evidence was that before he went to Ms Hawke's house he had drunk two or three cans of rum at lunchtime, but had eaten lunch and his dinner afterwards. Mr Sampson described him to have been a bit tipsy, but that neither he nor Mr Peterson drank. Later Constable Parsons said she could smell alcohol on Mr Waters, but that he was not drunk. 30Mr Waters arrived at between 8 and 9 pm and initially went into the house, before going out to the fire. He knew Ms Hawke. He had been told about the incident between Mr Peterson and the appellant and understood that he had received some threats. He also knew the appellant, who was the brother-in-law of his sister. He was concerned about his brother and wanted to ensure that he did not get involved in a fight with the appellant. Mr Peterson was then aged 19 years and Mr Sampson 17 or 18. Mr Waters was some 15 years older than his brother. In cross-examination he said that he was there to protect his brother and nephew. Mr Sampson's evidence was that Mr Peterson told him while they were in the yard, that the appellant wanted to fight him. 31There were various accounts of how it was that the affray later broke out. Mr Waters' evidence was that he heard a lot of yelling from the park. He moved to the fence and could hear one voice yelling out to his brother. He moved to the gates and saw the appellant in the park trying to call his brother over to fight. He was alone, calling Mr Peterson's name. Mr Sampson and Mr Peterson corroborated that evidence. Mr Waters said that he was urging his brother not to fight the appellant, but he went over to the park. 32The accounts given by the witnesses differed as to whether Mr Waters and Mr Sampson then followed Mr Peterson over to the park; whether Mr Peterson and Mr Sampson were armed with sticks; what caused them to return to Ms Hawke's house; and whether Mr Peterson went into the house and remained there, or was involved in the affray. 33What was common to these accounts was that Mr Peterson crossed the road and went into the park, where he approached the appellant and they yelled at each other. Mr Peterson was ready to fight the appellant, but fled from the park without any fighting between them. 34On Mr Waters' account he followed Mr Peterson, with Mr Sampson urging him to fight and Mr Waters urging him not to. They were about five metres apart and he finally pulled him away, when he saw the appellant bring something from behind his back, which he described to be shiny, which he saw glinting. He could not see what it was, but said that he was frantic, fearing that it was a weapon and told them to get out, he did not want them dead. He grabbed them by the back of their shirts and dragged them back and they went back to Ms Hawke's house, where Mr Peterson went inside and he went into the yard. 35Mr Waters was cross-examined by the Crown as to earlier evidence he had given, in which he had said that the appellant had pulled out what looked like a knife or machete out of his sleeve. His evidence was that he only caught a quick glimpse of this object, before he pulled his brother and nephew out of the park. In cross-examination for the appellant he agreed that he had not mentioned this object when he made his statement to police, while in the hospital. He explained that he was then only asked about who had hit him. He had not then seen a machete, only a little metal pole, or shiny thing. He agreed that he was not sure that it was a knife or machete, but insisted that he had seen a shiny object. 36Mr Waters said that Mr Peterson and Mr Sampson were in and out of the yard a couple of times, checking the park, while he was in the yard talking. About five or ten minutes later there was more abuse yelled from the park. He then heard more voices and when he went and looked over to the park, he saw a group of men, with the appellant in the centre, carrying weapons which looked like sticks, a bar and a machete, but he could not see what the appellant was carrying in his hand. Mr Peterson and Mr Sampson were no longer armed. The two groups were exchanging abuse and he tried to get everyone back into the yard and shut the gates, while there were missiles being thrown at him. He said in cross-examination that Mr Peterson was then near the back steps and Mr Sampson behind one of the cars in the yard. He was in the driveway. 37Mr Sampson's evidence was that Mr Peterson went to the park. In cross-examination he said that he was alone and unarmed and that he had not seen Mr Waters go into the park, he remained with him and a Mr Allan. He also said that he saw Mr Peterson flee the park, after the appellant pulled 'a machete or something' out, when they were about '30 metres apart' and starting running towards him. About 30 others who were all armed with 'sticks and stuff' joined him. In cross-examination he said they might have been 50 metres apart and the group which emerged another 20 metres behind him. 38Mr Sampson's evidence was that Mr Peterson ran into the house and told him to help Mr Waters. Mr Peterson agreed that he went inside, but accounts as to how long he remained there differed. On Mr Peterson's own evidence, however, he was also involved in the affray, returning outside and throwing bottles at the group attacking Mr Waters. Mr Sampson's evidence was that he had also gone to go inside, but became involved when he saw Mr Waters was being attacked. He was then throwing bricks he said, in order, to protect himself. In cross-examination he denied being inside the house during the affray. Mr Peterson had locked the door on him, when he went inside. Mr Peterson's evidence was that Ms Kedwell was also involved in the fighting at one point. She denied this. 39Mr Peterson remembered the appellant yelling his name and that he 'jumped straight at it' and 'that's when me and him was meant to meet in the middle of the park and have a go' and that he went there 'peacefully to get it over and done with'. He said that he took nothing with him and that Mr Waters and Mr Sampson did not go with him, but waited near the gate. He saw the appellant swinging something around in his hand and saw other 'young fellas' come to join him from behind the bike jumps and that he turned and ran as soon as he saw their heads popping up. He did not know what the appellant was holding, but he could 'see the shine'. He said that when he got to the back door, they were already in the yard. That did not accord with the evidence of other witnesses. 40In cross-examination Mr Peterson denied that he had hit the appellant in the stomach with a brick, while they were in the park together. He claimed that he was then concerned to look after Mr Sampson and not cause dramas. 41Ms Kedwell's evidence was that she also heard the yelling before the affray broke out. She saw the group in the park increase from three to four people to 10 to 15. Her evidence was that the group from the house were yelling out 'Reapers for life. Mother' and the group across the road yelling 'QSBs bitches'. She also saw rocks, bricks and sticks being thrown by both sides and the group in the park cross the road. She then saw three or four of them run up to Mr Waters, who was hit over the head with what she described to be a big green coloured samurai style sword, when three or four people ran up to him. He fell to the ground behind a car, about two to three feet from the fire, with blood pouring out of his head. She could not see him on the ground, but could hear what sounded like the men continuing to beat him. They ran away a few minutes later. 42Ms Kedwell said it was dark and that she could not see people's faces, but described the person who struck Mr Waters in terms which did not describe the appellant. The appellant is of Aboriginal descent, a middle-aged man of average stature. Her description of what she saw was: "Q. How many do you say ran up Koey? A. There was about three or four of them. It was that dark but I know there was at least three of them and one of them hit him over the head with a sword looking thing. Q. Can you describe the sword looking thing? A. Well, it was really long, or fairly long. It was sort of - well, what I could see in the dark anyway it was sort of like a greeny colour. Could have been dark or could have been lighter but what it looked like to me was like a greeny looking colour. Q. How long was this thing? A. It was fairly long, I wouldn't be able to tell you exact inches or length but it looked like sort of one of them mantel swords, if you know what I mean. Like, you put on a mantel or something like that, one of them- Q. Decorative? A. Yeah, just display Samurai looking - or I don't know, one of them sort of looking things, so - to me it did anyway. ... Q. The person you say who had the sword, who struck Koey, are you able to say what that person was wearing? A. It was really dark and - see, I can't really remember anything. Like, if you were to ask me when it first started, I probably would have been able to but now I can't really remember anything. Q. You remember giving evidence in this courtroom in July of last year? A. Vaguely. I do but -1 remember coming but I don't remember what I said, so- Q. Right, okay? A. They gave me a transcript, I think they called it. I think that's what they called it anyway. Q. I'm going to read from that transcript. Okay? A. Yep. WALSH: Your Honour and Mr Crown, p 216.40. Q. This question was put to you? A. Mmm. Q. By the crown prosecutor? A. Mmm Q. "Q. The person that swung the sword, are you able to describe the person like - A. He was young. That's about it. He wasn't very old or I don't think so. Q. How tall? A. I don't know. Sort of average I suppose. I couldn't tell you. Q. What gave you the impression that he was young? A. Just because of the way he - he wasn't very big. Like, he wasn't like, you know, like man sort of size. He was sort of a young guy. Q. He was just a smaller person? A. Yeah. Q. But you didn't see his face? A. No. He was just small framed. Q. The other boys or men around Koey, did they have any weapons or anything in their hands? A. No. There were just one of them that did." That's the evidence you gave in July last year? A. Yep. Q. On that occasion you told the truth to the best of your ability? A. Yeah. Q. Is that correct? And you agree today that would be your evidence today? A. Yep. Q. You talked about some of the people on our side? A. Mmm. Q. Ernie, Dale, Frank and Thomas? A. Mmm. Q. Begin outside - at some stage outside the yard just outside the fence. Is that right? They were yelling across the road? A. Yes, that is correct. Q. Did you ever see Koey go outside the yard at any stage that night? A. Not that I can remember, no. Q. And you said in your evidence today that it was very dark in the yard. Is that right? A. Yes, it was. Q. And I take it that's why you can't say too much about what you saw because it was so dark. Is that right? A. That's correct. Q. And you weren't able to see people's faces and - is that correct? A. That's correct. Q. So you could see people but not the detail of- A. Yeah, but not the detail." 43Mr Waters' evidence in chief was that he was in the driveway trying to shut the gates, but things were frantic. He was later told that his brother had then gone into the house. Rocks, bottles and sticks were being thrown and then someone shouted a warning to him, he turned around and was attacked. 44Mr Waters said that he then saw the appellant, but he was not the first one who ran into the yard. He was first hit in the ribs with a whipper snipper handle, being wielded by someone other than the appellant, who he identified. He retaliated by punching that person, who fell to his knees and the others then set him upon. He kept fighting, being hit everywhere. He felt two hits on the head and felt his ears pop. He pulled the man on his knees over and rolled onto the ground, using him as a shield, while he continued being hit with sticks, iron bars and what felt like blunt objects. He then thought someone was trying to kill him and eventually let the man he was holding go and managed to stand up, ready to fight on, but his attackers fled, chased by those in the yard, who were still throwing things at them. 45Mr Waters did not know what he was struck with on the head and could not identify the person who struck him, or those with him, apart from the person who hit him with the whipper snipper. In cross-examination he said that he did not actually see the appellant in the yard and agreed that he had never said that it was the appellant who struck him on the head. 46He was treated in hospital for his head wound, lacerations and bruising. He made a statement to the police while there. The head wound required nine stiches. 47Ms Hawkins' evidence was that she was at Ms Hawke's house during the day with Mr Peterson and Mr Sampson and had heard people going past on a number of occasions, yelling at Mr Peterson. She had also heard Mr Peterson respond. She returned to the house at about 8pm and was told to park her car in the yard, because the 'boys in Quinn Street' were 'starting stuff'. She was outside later and saw Mr Peterson, Mr Sampson, Mr Waters and others standing near the gate, while people were yelling from the park. She heard Mr Peterson respond at one point, but did not listen to what he said. She could see the outlines of four or five people's shadows in the park, moving around. She thought at one stage some boys had crossed from the house to the park and returned, but she could not remember who they were. 48Ms Hawkins then saw four people in the park walk towards the house. She saw another four or five come out and then a larger group, who she described as 'the boys from Quinn St', start running toward the house. When they got close she was told to go inside the house. All the girls did, apart from Ms Kedwell. When she was up on the steps she could see that one of them was carrying a metre-long object in his right hand, held beside his body towards the ground. It was shining in the light, while the others were carrying a wood plank or a stick and bricks and rocks. 49From inside the open door Ms Hawkins saw four or five men from the park rush towards Mr Waters, who she saw fall. She did not see him hit the ground, because a car obscured him and she was then pushed inside the house. She also saw the man carrying the shiny object at the gate, walking fast toward Mr Waters, before he fell. She also said that Mr Peterson had been inside the house, but she thought that he was then standing near the steps. He did not come back inside again, until shortly before Mr Waters did. It was she and another girl who called the police. 50In cross-examination Ms Hawkins said that Mr Peterson had been inside the house for only about a minute and that he was standing near the bottom of the steps when Mr Waters was being attacked, although she agreed that she was not sure when he was inside. She also agreed that in other evidence she had given, she had said that he was inside when five people attacked Mr Waters. Her memory was not clear, but she did remember that the person with the shiny object was wearing a blue jumper. In re-examination she said that she could only remember bits and pieces of that night, but that she was sure that he was wearing a candy blue jumper. 51She also said that Mr Waters had asked her to look at his head. She could see his skull and got him a towel. She did not know the people who had attacked, she did not see their faces, but was later told that it was the Princes. 52Ms Hawke had also heard the yelling outside. She did not really remember who was yelling, but said that Mr Peterson had started a lot of trouble for her on earlier occasions. She did not know all the people who were at her house that evening. She said that she had no control over who had come there. She was inside with her friends watching moves. 53She remembered the yelling starting outside with Mr Peterson. She went outside at the back door to see what was going on. She saw Mr Peterson, Mr Sampson, Mr Waters and two others standing near the gates yelling abuse at a group of four or five men in the middle of the park, who were also yelling abuse. She had not then known that Mr Waters was there. 54Ms Hawke remembered that things were then thrown by both sides, such as rocks, bottles and bricks. The boys in the park came closer, over to the road and the others retreated and then things escalated. 55Parts of her fence were pushed in and Ms Hawke saw one person run across and strike Mr Waters, who was still standing outside the fence, once on the top of the head with a machete which he was holding. She identified that person to be the appellant, who she said 'was named and pointed out to me'. She did not then know him, but that was what everyone was then saying and what it looked like to her, having a few months earlier had him pointed out to her in the street. She said that others came with him, but she could not remember what they were carrying. 56She also said that when Mr Waters fell to the ground, the attack did not stop, but they started laying into him. He was not armed, but was surrounded by the appellant and others who were hitting him as well, she assumed with their fists. In cross-examination she recognised one of them to be Steven Prince, who she agreed was of small build, aged about 17 or 18 years. She could not remember what the appellant was wearing. 57In cross-examination Ms Hawke said that she realised the appellant was holding a machete when he came closer. Initially when he was in the middle of the park she was not sure what it was. She thought it was a pole, but when he got closer she saw it had a blade at one end. He was standing under a light at one point as he crossed the park. It looked green in colour and was about a metre long. She said that Mr Waters was then outside the fence about seven and a half metres away and Mr Peterson was inside the yard. She was the only witness who placed them there. Others said Mr Waters was in the yard, near the fire when attacked and Mr Petersen near the steps. In cross-examination she agreed that her memory of the evening was no longer good and that the lighting where Mr Waters was, was not very good. She also agreed that afterwards, there had been a lot of talk about the incident, in which the appellant's name had been mentioned. 58Ms Hawke went inside and called an ambulance and the police. She later gave Mr Waters some towels. She later participated in computer generated photographic identification when she identified the appellant as the person who had hit Mr Waters with the machete. She considered that he had a recognisable face. 59In cross-examination her evidence was, however, that she had not paid much attention when the appellant had been pointed out to her in the street, he was then walking away on the other side of the street. She said she had just had a look and looked away. She also said that her memory of the night was not good and that she was relying on her statement. She also agreed that she had given evidence in other proceedings, that she had chosen the appellant's photo because of his distinctive almond eye shape. She agreed that she could have been wrong that it was the appellant holding the machete, because she wouldn't have been able to see the shape of his eyes that night and only had a brief moment to observe what had happened. 60Ms Hawke said at one point that the appellant had been pointed out to her that night. When pressed, she could not remember whether he had been pointed out to her that night and said that she had to go off her statement. She also agreed that she had earlier given evidence that he had not been pointed out to her and added that she could be wrong that it was him who hit Mr Waters with the machete, but that she was pretty sure that it was. 61In re-examination, she said that she had identified him because he had been pointed out to her before and she recognised his face, when he came into the light in the park. 62Mr Sampson's evidence was that he was in the yard, near a car, protecting himself by throwing bricks which were near the side of the house, when he saw the appellant run through the gate. Others were then bashing into the fence. He saw the appellant pause and the others with him run towards Mr Waters. He then saw the appellant strike Mr Waters on the top of the head with a machete, causing him to drop to the ground. He described the machete to be silver, about 60cm long and that it caused a big slice on the top of Mr Waters' head, from which blood poured. The appellant then ran off and others, whom he did not recognise, hit Mr Waters with sticks and poles around his ribs and back. In cross-examination he insisted that he saw the appellant attack Mr Waters with a machete and said that he was wearing a white top. 63Mr Sampson said that Mr Waters was unarmed and defended himself by grabbing one of his attackers and using him like a shield. He was then about ten metres away and could not help him, as he was defending himself by throwing bricks and then five or six men chased him into the house, where he remained for a minute or two, before he went back outside, when the attackers ran off. He identified various of the others involved in the affray, including Michael and Stephen Prince, whom he knew 64In cross-examination he said that he did not see a whipper snipper being used. He was on the other side of the car to Mr Waters, but said it was not difficult to see what was happening. He denied seeing the appellant banging at the backdoor. 65Mr Sampson also denied that he was part of a gang called 'the Reapers', but agreed that Mr Peterson was and that he hung around with them and that he knew that there was a dispute between them and the Prince boys. He also said that Fiona Prince was at the house that night and that earlier in the afternoon, he had seen the appellant and others drinking, a street away. 66Mr Peterson said that he saw his brother fighting one-on-one and one person hitting him with a stick and 'the lad on the other side' also hitting him. He saw him fall and another 'old cuz' fall on top of him and the appellant standing over him, 'trying to crack him', while this man was on top of him. He did not know if the appellant did 'crack' him, but he saw that he was carrying a 'metal sort of piece thing', which could have been even a piece for the bottom of the door which blocks the air, about three quarters of a metre long. 67Mr Peterson did not recall going into the house, but said that he was at the back door, trying to launch things to get the attackers away from his brother. He was about eight metres away, being attacked near the fire, with one lad trying to hit him with a fence paling in the ribs and the appellant on one side and his nephew on the other. 68In cross-examination Mr Peterson denied remaining in the house, because he was worried about the appellant getting him. He said he was worried about getting whacked and launched bottles from the steps, to try to get the attackers away from his brother, because he 'wasn't gonna run down and get myself slaughtered'. He insisted that he saw his brother fall, with the appellant on one side of him and one of his nephews, Michael, who he described to have fair skin, on the other. He said that he did not know if he actually saw the appellant hit Mr Waters on the head, but he saw him swinging at him, while he was on the ground. 69Evidence was called from police officers who attended the scene, where they found Mr Waters sitting in the gutter, seriously injured. They conducted a search and recovered various weapons in the vicinity, including knives, a hammer and a whipper snipper shaft, which had blood on it. DNA analysis yielded no results. 70It should also be noted that King DCJ gave the jury a warning as to the reliability of the evidence given by Mr Sampson and Mr Peterson, given their obvious involvement in the affray. This has to be taken into account, when assessing their evidence.
Ground 1 - error in the directions given in relation to the alternative charge of reckless wounding in company 71In my view this ground of appeal was not established. 72The s 33 charge was left to the jury on two alternative bases. Firstly, on the basis of direct liability, that is, that it was the appellant who inflicted the wound to Mr Waters' head. In the alternative, that he was guilty of the offence by reason of his participation in a joint criminal enterprise to wound Mr Waters with the intention of causing him grievous bodily harm and that the wound was caused by a party to that enterprise. The appellant made no complaint as to the charge so advanced, or to the directions given to the jury as to that charge. 73This ground of the appeal rested instead on the directions given in relation to the statutory alternative to the s 33 charge, of reckless wounding in company, which arose under s 35(3) of the Crimes Act. It was also put on the alternative basis, that the appellant was involved in a joint criminal enterprise. 74The appellant accepted that s35 charge was properly put to the jury and that there was no error in the directions given as to recklessness. 75The appellant's case was that his Honour had erred in relation to the directions given in relation to mens rea for that offence, when put on the alternative joint criminal enterprise basis. In that regard his Honour directed that: "Not only must the person inflicting the wound have been reckless, but the accused, Ian Scott Prince must have intended that that person would inflict the wound recklessly." 76There was no objection at trial to this direction by either the appellant or the Crown. In the result, the jury was directed not only that the Crown had to prove that the actual offender who wounded Mr Waters did so recklessly, but also that the appellant must have intended that the actual offender would inflict the wound recklessly. The Crown accepted that this direction was wrong. It overstated the mens rea which it was required to prove against the appellant for the alternative charge. 77As the Crown submitted, what it had to prove in that regard was firstly that Mr Waters' wound was inflicted recklessly by one of the appellant's co-offenders. Further, that the appellant was involved in a joint criminal enterprise, that is, an agreement to attack Mr Waters; that he was acting in company with his co-offenders who he knew were armed with weapons, capable of inflicting a wound when used to strike Mr Waters; that he realised that Mr Waters might be wounded, as a result of the actions taken by one of the other persons with whom he was in company during their attack; and that despite this, in furtherance of that enterprise, he continued to participate. 78In the circumstances, however, as the Crown submitted, his Honour's error had no impact on the appellant. This was because his Honour properly directed the jury that they could only turn to consider the statutory alternative offence, if they acquitted him of the more serious s 33 offence. There is no reason to think that the jury did not adhere to that direction. The jury convicted Mr Waters of the s 33 offence and thus had no occasion to consider the statutory alternative. 79In any event, given the nature of his Honour's erroneous direction, even if the jury had considered the s 35 offence before deciding that the appellant was guilty of the s 33 offence, contrary to the direction his Honour had given in that regard, the error would have been one which favoured the appellant. 80In the result, no miscarriage of justice could have flowed from the misdirection. As the Crown submitted, in the circumstances, the appellant's failure to seek a redirection at the trial in relation to this misdirection, may well have been the result of a proper forensic decision then made. 81This ground of appeal should thus be dismissed.
Ground 2 - the verdict in relation to the s33 charge was unreasonable and incapable of being supported by the evidence. 82In my view this ground was also not established. 83The appellant's case was that it was implicit in the Crown's decision to put the s33 in the alternative, that it could not prove beyond reasonable doubt that it was he who had inflicted the injuries which Mr Waters sustained. 84This submission must be rejected. 85The Crown advanced its case on the two alternative bases earlier mentioned. Reliance on such an alternative is commonplace. It involves no concession of the kind asserted on the part of the Crown. The jury was properly directed that it was open to them to bring a unanimous verdict of guilty, even if only some of them were satisfied beyond reasonable doubt that it was the appellant who had inflicted the wound and others were satisfied only that he was a member of the joint criminal enterprise. There was no complaint made about that direction. Nor could there have been. 86The appellant's case was that the evidence did not permit a conclusion beyond reasonable doubt that he shared an intention with those with whom he was involved in that enterprise, to inflict really serious harm on Mr Waters. It was submitted that the only evidence of such an intention was:
Ground 3 - the sentence imposed was manifestly excessive and/or it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds 107The Crown conceded that the appellant must be re-sentenced, as I earlier explained. For reasons which I have explained, in my view the appellant also established that it was not open to his Honour to sentence him on the basis that he inflicted the head wound which Mr Waters suffered. The Crown submitted that even if this conclusion were to be reached, the sentence would not be disturbed, because the Court would not be satisfied that any lesser sentence was warranted in law. 108For the following reasons I am satisfied that a lesser sentence was warranted and that the appellant must be re-sentenced accordingly. 109This sentencing exercise was plainly a difficult one. It had to be conducted in light of the provisions of s 3A of the Crimes (Sentencing Procedure ) Act 1999 which provides: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 110As Gleeson CJ said in R v Engert (1995) 84 A Crim R 67 at 68: "[T]he interplay of the considerations relevant to sentencing may be complex ... In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. ... It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances." 111His Honour concluded that there was no remorse or contrition on the appellant's part and not much prospect of rehabilitation, given the evidence of his history and attitude. Those conclusions were properly available on the evidence. 112He also considered that it was fortunate that Mr Waters had not been more seriously harmed and that the sentence imposed had to reflect both general and specific deterrence. In the result, he considered that no penalty other than imprisonment was warranted. As the result of the finding of special circumstances, he reduced the non-parole period in the appellant's favour, by some 4 months and 2 weeks to allow for a period of 2 years on parole. That the appellant requires extended supervision once released is apparent. 113The appellant did not challenge any of these findings. His case on sentencing was that the total effective sentence of six and a half years imprisonment and four and a half years non-parole, was manifestly excessive because: the evidence did not establish beyond reasonable doubt that it was the appellant who wounded Mr Waters; that he was being sentenced for the less serious version of s33, 'wound with intent' not 'inflict grievous bodily harm with intent; the nature of the wound inflicted the provocation of the offender by others present with Mr Waters the difficulty of the offenders upbringing and background (see R v Fernando ) that he ought to have been sentenced on the basis that he inspired the attack, rather than that he recruited to attackers the degree of accumulation was excessive 114The appellant also relied on a number of other decisions in which lesser sentences than that which his Honour fixed were imposed, which the Crown submitted were factually distinguishable and not of assistance in this case. It is not necessary to refer to them. These cases where not of assistance, given their factually different circumstances. 115The maximum penalty for the s 93 offence was 10 years. The maximum penalty for the s 33 offence was 25 years imprisonment, with a standard non-parole period of 7 years. They were guideposts on sentencing which had to be taken into account, as was explained in Markarian v R [2005] HCA 25; (2005) 228 CLR 357. 116Given that his Honour sentenced the appellant on the basis that he was satisfied beyond reasonable doubt that it was the appellant who had not only either recruited the other offenders involved in the attack on Mr Waters, or at least inspired the attack in which he joined, but had also inflicted the major injury which Mr Walters suffered, it is arguable that the sentence imposed upon him was not a heavy one. While his Honour gave an explanation for the former conclusion, he did not explain how he had come to the latter conclusion. As I have explained, his Honour erred in that regard. 117The sentence which his Honour imposed reflects the conclusion which he reached as to the seriousness of the injuries inflicted on Mr Waters, which had no significant sequelae and which his Honour considered were 'far less significant than might otherwise have been the case in different circumstances'. That is a conclusion with which I agree. 118As the Crown accepted, the nature and extent of the injuries inflicted must be appropriately reflected in the sentence that is imposed (see Bourke v The Queen [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [49] and [70] - [72]). So must the overall objective seriousness of the offence. Objectively this would have been a much more serious offence, if the Crown had established that the appellant not only had the moral culpability of his involvement in this joint criminal enterprise, but had also himself wielded the weapon which inflicted the head would which Mr Waters suffered. 119The appellant's offence was still plainly a serious one. It was very closely connected with the affray offence, during which Mr Waters was particularly targeted. This is not a case where the two offences involved entirely discrete and independent criminal acts. The total sentence imposed must nevertheless reflect the total criminality of the two offences (see Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]). His Honour accumulated the sentence imposed for the s 33 offence by 6 months. I can see no error in that conclusion in the circumstances of the two offences earlier discussed. 120The sentence imposed also reflected the conclusions which his Honour reached as to the appellant's subjective circumstances and other relevant matters to which his Honour referred. 121The evidence in that regard was that the appellant is an Aboriginal man, with a long criminal record. He gave no evidence and so it must be remembered that his various reports of his background and personal circumstances were untested. 122The pre-sentence report referred to his ongoing involvement with the Probation and Parole Service since 1990, when he breached a community service order for offences of malicious injury and common assault. There had subsequently been a number of parole revocations and further offending in 2009, while he was on parole. 123This report revealed that the appellant was one of seven children. His father died in a car accident in which he was also involved, when he was aged 15. He had been adversely affected by his death, as well as by the death of a young nephew, who drowned in an accident. 124The appellant had four children from an earlier relationship characterised by domestic violence, three of them then adults. He was also involved in another relationship of 12 years duration, which had resulted in five children and his partner was then expecting a sixth. This relationship had also been marred by violence and alcohol use. There had been a history of AVO intervention. The three eldest of these children were in long-term care with relatives, as the result of child protection concerns. The two youngest children remained in their mother's care. 125The appellant reported completion of schooling only to year 7, with the assistance of a specialised learning program, before expulsion for violence which he attributed to bullying. He had completed some external education courses by correspondence and was involved in various community Aboriginal roles. His work history had primarily involved seasonal farm work learned from his father. There had also been construction work, but he was then in receipt of a Commonwealth benefit. 126The appellant disclosed alcohol dependence after his father's death, with almost daily alcohol use to the point of intoxication, with the result on some occasions that he slept on a riverbank. He reported never having had a significant period without alcohol consumption, other than during incarceration. He also had a history of sniffing liquid paper and petrol in childhood and later cannabis use. There had been unsuccessful rehabilitation attempts. 127The appellant also reported a history of animosity between the familles in the area in which the offences occurred, but denied any responsibility for the offences. He claimed that his own relatives were responsible and that they had not owned up to their involvement. This had caused a rift in the family unit. He could not accept punishment for an act which he did not commit. 128A psychologist's report noted that the appellant appeared agitated and confused, experiencing difficulty containing his anger. He revealed fixed beliefs that his co-accused should be punished and that he would seek revenge, if given a long period of incarceration. While he was forthcoming with information, his account was described as tangential, circular and inconsistent. He was a poor historian who felt mistreated by the judicial system, expressing a strong sense of anger and difficulty regulating his emotions. 129The history given as to his background differed somewhat to that in the pre-sentencing report. The psychologist recorded that he was one of 11 children born to his parents, that it was his sister, not his nephew who had drowned as a child, that two of his brothers had died in a car accident when he was a toddler and that his nephew had died from drowning when he was aged 18 years. He also described his father dying in his arms, in the car accident in which he died and his feelings of responsibility for the death of his father, sister and nephew. 130He described his father as a sheep shearer and his mother having household duties. They had a volatile relationship triggered by his mother's alcoholism and infidelity and his father's domestic abuse towards her, which normalised such behaviour for him. His parents struggled financially, because all of their finances were spent on alcohol, which his father also abused. The appellant's father imposed strict boundaries on him which he considered that he required, as he was often rebellious and difficult to manage. After his father's death he often isolated himself for several weeks and was unable to sustain stable employment. His behavioural problems escalated and he was involved in fighting, aggression and expressed depressed moods, blaming himself for being unable to save his dad. 131The appellant described his mother a lifelong alcoholic, until some 15 years ago, when she became involved in a church, to which point the appellant described her as having been drunk for over 30 years. He continued to express his anger towards her for her abusive behaviour towards him. He described her problems after his father's death and how she abused alcohol and cannabis and suffered from depression and how she treated him unequally, by comparison to his younger siblings. 132He also described his volatile relationship with his siblings, for whom he had felt over responsible after his father's death. He described his abuse of them as a means of gaining control over his own life, before his father's death and how this changed when his mother became more available afterwards and he moved to Sydney. He had been living with his sister and her partner when he became involved in his current offending. He then had no contact with his siblings and held a great deal of anger and resentment to his sister and her partner, for putting him in gaol. 133He had first come into custody when aged 12 years and spent much of his adolescence in juvenile detention, and much of his adult life in prison. He was regularly in trouble, even in primary school, for fighting and misbehaving, but claimed never to have been seriously disciplined at school. His problems escalated in secondary school. His education ceased in year 7 when he assaulted a student and a teacher and was expelled. Despite attempts in institutions, he never completed his schooling and had only completed short courses in custody. He had worked in seasonal and construction work for periods of six months when not in custody. He was unreliable because of his alcohol use. He aimed to find employment when released. 134His medical history included stabbing injuries in the leg and chest when aged 20, 30 and 41. As a result he experienced hyper vigilance when someone was armed with a knife. He had also been shot in the knee, but suffered no permanent injuries other than scarring and had been run over by a semitrailer, suffering a broken foot and shattered knee, which required treatment. He had also been hit in the head on a number of occasions in physical altercations, but denied any specific injury. He had also punched a window a month previously, when his daughter refused to be a witness. 135He described mischievous displays of attention seeking behaviour and exposure to alcohol and substance abuse throughout his life, by friends and family. He reported such abuse as part of his family and peer subculture and association through his adolescence and adulthood with antisocial peers and relatives. The psychologist considered that his limited prosocial peer relationships had reinforced his negative lifestyle, poor decisions and continued substance abuse and criminality. 136The appellant reported exposure to cannabis at age 13 and to alcohol at age 14. After his father's death alcohol use increased to daily intake, to the point of blacking out. While intoxicated he was involved in aggressive behaviour, fighting with both strangers and family. In the community the longest period he had spent alcohol free was one month. He did not experience difficulty abstaining while in custody, but used alcohol to self medicate. His alcohol abuse led directly to increased aggressive and criminal behaviour. 137He also reported that cannabis use was a strong part of the Aboriginal subculture within his local community. It was normalised for him. He reported daily dependent cannabis use of one pound a week, to relax or calm his aggression. He claimed that it made him think and analyse things and helped him feel remorseful. He also described experiencing symptoms of paranoia when smoking hydroponic cannabis. He had also experimented with hallucinogens, but he claimed not to a problematic extent. 138He reported attempting various residential rehabilitation programs on about five occasions. He ceased these programs prematurely after lapsing back into substance abuse. He also reported regular gambling of $500 to $600 a day in his 20's to 30's which had ceased. He then engaged in only non-problematic gambling. 139The appellant reported having a distant relationship with his four daughters from his first relationship. His second relationship had then produced six children, but it had also ended shortly before he went into custody. He described that he now had a hostile relationship with his former partner and that the oldest three of these children were in care due to his absence and his former partner's drug abuse and reckless behaviour. She had allowed drug users and strangers into the home, while the children were present. He was unable to care for them because of his own alcohol use and unstable accommodation. He had not seen them for some nine months. Despite the negative relationship he described with his former partner, he also reported considering returning to her. 140The psychologist observed that the appellant appeared to lack the emotional maturity to comprehend the impact of his behaviour on his children and what fulfilling his basic parental responsibilities required. 141The appellant acknowledged his presence at the time of these offences, but denied his involvement in them. He expressed a strong feeling of having been 'hard done by and wanting revenge' against his co-offender and a strong sense of injustice. 142The psychologist expressed reservations as to certain exaggerated symptoms and eccentric statements which the appellant made, but noted that he denied symptoms of various mental illness. She noted his exposure to significant stressors, various symptoms of anxiety and how he became angry and verbalised this. He also described ongoing symptoms of depressed mood, the result of his dysfunctional life and reported three occasions of self harm some years previously, when he also behaved aggressively towards his partner, as well as on another occasion when he had been wrongly incarcerated. 143The appellant acknowledged his history of antisocial traits, anger management concerns and aggressive behaviour, which occurred in the context of personal stressors, symptoms of acute drug withdrawal and paranoid thinking. He was easily triggered by authority figures and what he perceived as threats, to which he responded with aggression and hostility. He also described a lack of regard for others, becoming defensive when he felt like a political prisoner and being preoccupied with wanting to seek revenge by harming others who mocked him. He had never participated in anger management programs or consulted health professionals and could not identify adaptive coping strategies to deal with anger or stress. 144In the result the psychologist concluded that the appellant was highly dysfunctional and that he had little capacity for independent or functional community participation, while he continued to abuse substances. His test results showed him to be at low average functioning; that he had chronic problems with anger control; that he condoned aggression in certain contexts; that he had problems with emotion regulation and stress management and limited life management skills. 145It was observed that the appellant gave a seemingly confusing and contradictory account, with fixated beliefs and thoughts about being mistreated by the criminal justice system. His long history of offending was constant, despite sanction, dating back to 12 years of age and involving numerous driving offences, drug related offences and offences of violence. He had limited insight into his offending and externalised responsibly for it, expressing strong feelings of victimisation and being wrongly accused. He had poor insight or commitment into his rehabilitative needs. His coping skills were found to be limited and would have a profound impact on his behaviour, including in relation to drug dependence, impulse control problems, aggressions and ultimately crime. 146Various treatments were recommended, including long term rehabilitation for substance dependence and ongoing supervision on release into the community, including treatment for long term offenders who present problems in relation to institutionalisation. It was considered that the appellant required staged release into the community and supervision, to help develop living skills. Participation in the Community Offender Support and Violent Offenders programs, as well as other identified programs was recommended, it being noted that repeated incarceration had done little in terms of prevention of the appellant's further offending, 147His Honour accepted that this background provided some limited mitigation for the appellant's offending, consistent with R v Fernando (1992) 76 A Crim R 58. This aspect of the re-sentencing exercise must now be approached in light of the recent discussions in Bugmy v The Queen [2013] HCA 37 and Munda v Western Australia [2013] HCA 38. There reference was made to what Brennan J observed in Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at [63]: "The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal." 148Also to be considered is what was observed by the plurality in Bugmy as to Fernando, at [37] - [38] that: [37] An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando [Kennedy v The Queen [2010] NSWCCA 260 at [53]]: "Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime. [38] The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct [Fernando (1992) 76 A Crim R 58 at 62 (E)]. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand [Fernando (1992) 76 A Crim R 58 at 62 (C).]. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor [Fernando (1992) 76 A Crim R 58 at 62 (E)]. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and [Fernando (1992) 76 A Crim R 58 at 62-63 (E).]: "the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects." " 149At [42] it was accepted that in the case of an offender who, like the appellant, has come from a profoundly deprived background, suffering the effects of drug and alcohol abuse and violence, the effects of that deprivation do not diminish over time and must 'be given full weight'. As to this it was explained: [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult [Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ; [1988] HCA 14.]. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. [45] The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender's mental condition in sentencing [(1995) 84 A Crim R 67 at 68.]: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender." 150This is such a case. The evidence of the appellant's awful childhood experiences of violence and drug and alcohol abuse, cast significant light on his ongoing problems with anger management, violence and criminal conduct throughout his adult life, so as to reduce his moral culpability for his inability to control himself. To be weighed against this is not only his serious lack of control, which has resulted in his extensive criminal record, but also his lack of remorse and expressed desire for revenge and retribution, particularly on his co-accused and family members. This aspect of the evidence points strongly to an increased need to protect the community from the appellant. 151In Munda it was observed by the plurality at [53] - [54] that: [53] Mitigating factors must be given appropriate weight, but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence."[ Veen v The Queen [No 2] (1988) 164 CLR 465 at 477;; [1988] HCA 14.] It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour [R v KU; Ex parte Attorney-General (No 2) [2011] 1 Qd R 439 at 475-476 [133] .]. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. [54] It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community." 152These observations are pertinent to the sentencing exercise which must be undertaken in this case, given the evidence that the offending in which the appellant and his co-offenders were involved on this occasion was premeditated. All of these matters must be weighed in the balance when the instinctive synthesis discussed in R v Markarian is undertaken. 153Given the evidence I have discussed as to the nature of this affray and of the appellant's involvement in the attack on Mr Waters, the evidence of the appellant's attitude to the others involved with him in that offending, his stated desire for revenge upon them and his general attitude to violence, in my view in this case both general and specific deterrence must feature in the sentence imposed, even though it must be accepted that the appellant's moral culpability for his inability to exercise self control is reduced by the ongoing effects of his deprived upbringing and social deprivation, which must also be taken into account. 154In the result, I have concluded that after a finding special circumstances to permit the type of ongoing supervision which the appellant will clearly require once released into the community, the appellant should be sentenced to a total term of imprisonment of 6 years, with a non-parole period of 4 years and a balance of term of 2 years. The sentence must have regard to the 19 days that he spent bail refused in relation to these offences. 155The orders I would propose are as follows:
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: 18 November 2013
Prince
R
[2005] HCA 25
(2007) 230 CLR 559
(1994) 181 CLR 487
(2005) 228 CLR 357
(1982) 149 CLR 305
(2001) 53 NSWLR 704
(2011) 243 CLR 400
(1987) 163 CLR 454
(1988) 164 CLR 465
[2013] HCA 37