R v Bonett

PARTIES: Regina (Applicant) Benjamin William Bonett (Respondent)

COUNSEL: J Dwyer (Crown) G Turnbull SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown) Justin Lewis & Co (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/16359

GROVE J BUDDIN J RA HULME J

THURSDAY 7 MAY 2009 R v BENJAMIN WILLIAM BONETT Judgment

1 GROVE J: I have had the advantage of reading the judgment of Buddin J in draft form. His Honour has described the circumstances of the offence and the relevant subjective matters touching upon the respondent's culpability. I gratefully adopt those descriptions and will not repeat them beyond some observations which follow. 2 As noted, the sole expressed ground of appeal was that the sentence was manifestly inadequate. Charged by consumption of intoxicating liquor, the respondent committed a "brutal and relentless" assault upon an unresisting victim. 3 The sentencing judge accepted that the respondent had a mental condition which led him to perceive, contrary to the fact, that he was being provoked by the victim. This condition was referred to as ADHD which I understand (as mentioned by Dr Peponis) to be an acronymic label for Attention Deficit and Hyperactivity Disorder. These descriptive words seem to suggest that a link between disorders of those natures and a delusion of provocation may be somewhat tenuous. Medical and psychological material before the sentencing judge made the finding open but I would find it difficult to conceive how great mitigating weight could be placed upon it. 4 The seriousness of the injuries suffered by the victim speak for themselves. 5 It was a matter of extraordinary aggravation that the offence was committed during the currency of a sentence of imprisonment being served by way of periodic detention and within a day of being released from that detention, which was being served for what the sentencing judge described as "a glassing case" involving an unprovoked attack upon a victim who suffered serious cuts to his face "disturbingly similar to the injuries suffered" by the victim in the present instance. 6 The maximum penalty for this offence is imprisonment for 25 years and a standard non-parole period of 7 years is prescribed. It is true that the respondent raised a limited issue at trial but it was the issue of intention by him to cause grievous bodily harm and the verdict inevitably required recognition that he did intend to visit grievous bodily harm on the victim. 7 Whilst full weight needed to be given to the respondent's rehabilitative progress and the mental condition (as found) I have been hesitant to conclude that, particularly given the "guideposts" of the statutory penalty prescriptions, the imposition at first instance was not manifestly inadequate. 8 Where the offence stood in the range of seriousness for this offence was a matter of obvious significance. Recognizing that the Crown accepted that it was not possible to impugn the findings of fact by the sentencing judge, I consider that the discrimination between his Honour's assessment of the offence being "slightly below the mid range of objective seriousness" and the "mid range of objective seriousness" contended by the Crown to be the assessment which he ought to have made, is insufficiently substantial to justify intervention by this Court. 9 I would, however, wish to stress that it is in my opinion in all the circumstances that the sentence received by the respondent was markedly lenient and bordered upon the limit which would see it categorized as manifestly inadequate. 10 I agree with the order proposed by Buddin J. 11 BUDDIN J: This is an appeal brought pursuant to s 5D of the Criminal Appeal Act by the Director of Public Prosecutions against the asserted inadequacy of a sentence imposed upon the respondent in the District Court. 12 The respondent was sentenced to a non-parole period of 5 years with an overall term of 8 years imprisonment to date from 22 August 2007 following his conviction of an offence, brought pursuant to s 33 of the Crimes Act, of malicious wounding with intent to do grievous bodily harm. The maximum penalty for the offence is imprisonment for 25 years and a standard non-parole period of 7 years is applicable to it. 13 The respondent pleaded not guilty before the jury to that charge but guilty to an alternative count, brought pursuant to s 35 of the Act, of malicious wounding. The Crown did not accept that plea and, as I have said, the respondent was convicted of the more serious charge. The only issue in the trial was whether the Crown could establish that the respondent had the requisite intention for an offence pursuant to s 33 of the Act. 14 It fell to the sentencing judge to determine the relevant findings of fact. I will now endeavour to briefly encapsulate those findings. By the early hours of 4 December 2006 the respondent was moderately affected by alcohol after having been drinking at a nightclub. When the respondent left the nightclub he came across a car which was parked a short distance from the club in South Dowling Street. In the car were some young women whom the respondent knew. Also at the car was the victim. Each of the occupants had been drinking and some of them had also consumed ecstasy. They were waiting to be driven home by the owner of the car who was still at the club. 15 When the respondent originally approached the car, he was asked by the young women if he would return to the club in an effort to find their friend, presumably in order to tell her that they wished to go home. The respondent returned to the club but was refused entry apparently because he appeared, to security staff, to be drunk. By the time the respondent returned to the car, the victim was seated in the car "but sideways on the front passenger seat". The victim had been on his way to the nightclub when he had struck up a conversation with the young women in the car, whom he had not previously met. 16 Upon his return to the car, the respondent and the victim exchanged words. When the topic as to why the respondent had not been able to get back into the nightclub was raised, the victim said to him words to the effect of "that was because you were drunk". The victim gave evidence that the respondent had replied "you're a faggot" and "you're nothing but a little girl" and "listen here little faggot, I'll smash your face in". According to one of the young women who was present, the respondent said "shut up you little faggot" to which the victim replied "listen sweetheart, leave me alone". 17 The sentencing judge found that, although the evidence was a little confusing, it appeared that the respondent then either head-butted or punched the victim in the face after which he grabbed hold of the roof of the car and, using it to support himself, swung his feet towards the victim and kicked him in the head. The respondent then dragged the victim from the car and stated to punch him about the head and body. He also kicked the victim with some force. The respondent then grabbed hold of a beer bottle which he proceeded to smash. With the broken bottle in his hand, the respondent then swung his arm and cut the victim's face with the broken bottle causing two separate wounds. The victim was taken to hospital where his wounds were treated by a plastic surgeon. The sentencing judge observed that the victim "still endures significant visible facial scarring…albeit, I suspect that [it] will tend to fade over time. Nonetheless, he will still have it as a reminder of this incident." The sentencing judge described the wounds as being "grotesque and serious" although he found that "the long-term effects on the victim of the injuries were comparatively few given the original seriousness of the wounds". 18 His Honour found that the events occurred "within a relatively short time frame" and "that there was a degree of spontaneity about the offence and it is obviously not one that was planned." Nonetheless his Honour observed that the incident "represented a sustained and accelerating assault [which] was brutal and relentless". His Honour also observed that the victim was not a large man and that he had offered no resistance. His Honour rejected any suggestion that the respondent had been provoked or that he had been acting in self-defence. The sentencing judge nonetheless accepted that the respondent had a mental condition, namely ADHD, which led him to having perceived that he was being provoked by the victim. 19 The sentencing judge was provided with a good deal of material about the respondent's background. The respondent and both of his parents gave evidence during the course of the sentence proceedings as did Dr George Peponis, a family friend who had at times been his local GP, and a Mark Brampton, who had taught the respondent when he was a youngster. His Honour also had available to him a pre-sentence report, together with various reports from a forensic psychologist, Stephen Woods and from a consultant psychiatrist, Dr Patricia Jungfer. From that material, it emerged that the respondent had been diagnosed as suffering from ADHD since early childhood. It was a condition that continued to plague him and it led him to act impulsively on occasions. It also meant that he sometimes had difficulty controlling his actions. When the respondent was in primary school the family moved to Bowral. The evidence suggests that he coped reasonably well until he entered high school. However from that point on, his schooling was significantly disrupted. Indeed he left school at the end of year 10 after having been expelled from a number of schools. It is apparent that he was bullied at school because of the learning difficulties that were associated with his condition. He was also subjected to frequent beatings from his father who understandably found it difficult to cope with his son's erratic behaviour. At about the age of 14, the respondent began drinking alcohol. Thereafter, he regularly indulged in binge drinking and the consumption of illicit drugs. Although the respondent worked for his father after leaving school, it is apparent that his relationship with both of his parents had become strained by the time of the offence. By then he had developed a dependency upon steroids and he was also abusing alcohol to a significant degree. The respondent had just turned 21 when he committed this offence. 20 Since the respondent has been in custody, his relationship with his parents has improved markedly and they, together with other witnesses, gave evidence that his overall attitude had undergone positive changes. The respondent has spent his time in custody productively. He has been working as a sweeper and has completed various drug and alcohol, and anger management programs. As I understand the situation, he plans to undertake a personal trainer's course upon his release from custody. 21 The respondent has a criminal history consisting of offences of violence, all of which have been committed against a background of poly-substance abuse. In December 2004 he was placed on a bond in the Local Court in respect of offences of common assault, resisting an officer in the execution of his duty and assaulting an officer in the execution of his duty. In December 2005 he was sentenced to imprisonment for a period of 2 years and 3 months with a non-parole period of 15 months to be served by way of periodic detention in respect of an offence of malicious wounding. He was serving that sentence at the time that he committed the present offence. The respondent failed to comply with the terms of that sentence and it was revoked in May 2006. As a consequence, the respondent was then imprisoned on a full-time basis for a period of three months. The order for periodic detention was later re-instated and in August 2006 he recommenced serving his sentence of periodic detention. In October 2006 he was released on bail having been charged with an offence of malicious damage. 22 The respondent attended for periodic detention on Friday 1 December 2006 and was released on the afternoon of 3 December 2006. He then went out all night and committed the present offence at about 7 am the following morning. Following the commission of the present offence, the respondent fled to Queensland where he was arrested on 30 January 2007. His periodic detention order was again revoked and he then served the balance of his non-parole period for that earlier offence. His Honour ordered that the present offence would commence from the date upon which that earlier sentence expired. 23 The circumstances of the offence of malicious wounding were before the sentencing judge. His Honour described it as "a glassing case which involved an unprovoked attack by [the respondent] on a patron at the North Sydney Leagues Club. He inflicted serious cuts to the victim's face, a result which was disturbingly similar to the injuries suffered by [the victim] in this case." 24 The sentencing judge observed that there were a number of features of the case which aggravated the seriousness of the present offence. First, was the fact that he had used the bottle as a weapon upon an unarmed person. Secondly, was the fact that he was on bail at the time of the offence. Thirdly, was the fact that he had a record of previous convictions and in particular the fact that he was serving a sentence for periodic detention for malicious wounding at the time of committing the present offence. His Honour correctly described that offence of being of "great significance" to the present proceedings. 25 The sentencing judge also found that there were a number of features of the case which served to ameliorate the otherwise appropriate penalty. His Honour accepted the respondent's evidence that he acknowledged responsibility for having inflicted serious injuries upon the victim and found that the respondent was genuinely remorseful for his actions. His Honour did note however that the respondent continued to deny that he had intended to inflict those injuries. The sentencing judge also allowed the respondent some credit for the fact that his plea had narrowed the issues at the trial. His Honour observed that it was implicit in the jury verdict that the respondent had the requisite intention specified in s 33 of the Act. Nevertheless his Honour concluded that it was still "passably clear that his ADHD played some part in the acceleration of this crime". On the other hand, his Honour noted that it could not be said that the respondent was unaware at the time of the offence of the nature and effect of his mental condition. He also observed that he had stopped taking his medication and that he had continued to use steroids. As a consequence, his Honour concluded that "both general and specific deterrence play a significant part in sentencing". His Honour also determined, in light of all the evidence, that there remained "some cause for optimism about his rehabilitation". His Honour assessed his prospects in that respect as being "reasonable to good". 26 As I said earlier, the offence of which the respondent was convicted has a standard non-parole period applicable to it. The sentencing judge dealt at some length with the principles which are to be applied in such a case, and in particular, had regard to what was said by this court in R v Way (2004) 60 NSWLR 168. After having thoroughly reviewed the evidence, His Honour characterised the offence as falling "slightly below the middle of the range of objective seriousness for this type of offence". His Honour referred to the "relative spontaneity of the offence", and to what he described as the respondent's "operative mental disorder…at the time of the offence" as well as his age as being reasons for imposing a non-parole period which was less than the standard non-parole period. After considering the various aggravating and mitigating factors to which I have referred, his Honour then found "special circumstances" by reason of the respondent's need "for extended supervision in the community to address his drug and alcohol problem, and treatment for his psychiatric disorder in that setting" and his age.

27 The sole ground asserted by the Crown in the notice of appeal was that the sentence was manifestly inadequate. In written submissions filed on behalf of the Crown it was submitted that:

The following discrete errors may account for the lack of proportion of the sentence to the seriousness of the offence : (i) Failure to find that the offence fell within the mid range of objective seriousness; (ii) Failure to give proper consideration to the standard non parole period as a guidepost, even in the context of a finding that the offence fell "slightly" below the mid range. (iii) Failure to consider Veen (no 2) in the context of finding that the respondent had reasonable to good prospects of rehabilitation; (iv) Variation of the statutory ratio based on a finding of special circumstances. (emphasis added) 28 In Carroll v The Queen [2009] HCA 13, the High Court observed that:

The particular principle which the Director sought to invoke in his appeal to the Court of Criminal Appeal against the sentence passed upon the present appellant was the last category of case identified in the well-known classification stated in House v R : …

The Director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was "manifestly inadequate", was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.

In support of that ground of appeal the Director submitted to the Court of Criminal Appeal that there were three reasons the sentence was manifestly inadequate… …it is as well to point out that none of the three matters identified by the Director was, or was advanced as being, an error of principle or fact such as would have enlivened any of the forms of error identified in House v R other than the last category. Each of the three arguments advanced was put as no more than some explanation for what was alleged to be a sentence which, on its face, was "unreasonable or plainly unjust ". (at paras 8-9) (emphasis added) 29 It is apparent from the written submissions that the present appeal falls into the same category as the case with which the court was dealing in Carroll (supra). 30 That said, it is convenient to deal with the first two matters, which the Crown asserts constituted error, together. In respect of the first asserted error, it was contended that the sentencing judge erred in his assessment that the offence fell slightly below the mid-range of objective seriousness. The Crown expressly conceded that it was not possible to impugn his Honour's findings of fact. Nevertheless, it was submitted that in view of the circumstances surrounding the offence, and indeed given the sentencing judge's findings in respect of them, that his Honour should have concluded that the offence was in the mid-range of objective seriousness. Moreover, it was contended that since the respondent had not pleaded guilty, the standard non-parole period should have been imposed. 31 In support of the second asserted error, the Crown submitted that the non-parole period which was imposed being "2 years short of the standard non-parole period [constituted] a substantial departure from it". It was further submitted that "the aggravating features were such that, even allowing for his Honour's finding as to objective seriousness, the non-parole period should have been much closer to the standard". It was also submitted that neither the respondent's age, nor his mental condition should have led his Honour to impose the sentence which he did. 32 As I have said, the Crown accepted that it was open to the sentencing judge to have found that the offence was in the mid-range of objective seriousness. Indeed it contended that that is what his Honour should have found. It is not easy to comprehend in those circumstances how an assessment that the offence was "slightly below" that range constituted error of the kind that would warrant the intervention of this Court on a Crown appeal against a sentence that was contended to be manifestly inadequate. In any event, in my view it was open to the sentencing judge to make the finding about the objective seriousness of the offence which his Honour did, even if it may be thought that it was a somewhat generous assessment. Likewise, the reasons which His Honour gave for departing from the standard non-parole period were findings which, in the circumstances of the case, were available to him. In Mulato v R [2006] NSWCCA 282, Spigelman CJ, with whom Simpson J agreed, said: Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised. (par 37) 33 Simpson J made the additional observations: The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance. (at para 46)

34 The passage from the judgment of Spigelmen CJ was cited with approval by James J in R v Wright [2009] NSWCCA 3, a decision in which a Crown appeal, brought in respect of a sentence consisting of a non-parole period of 2 years 6 months with a balance of 2 years imprisonment for an offence against s 33 of the Crimes Act, was dismissed. 35 There is one other matter which needs to be addressed. The Crown drew the court's attention to Mackey v R [2006] NSWCCA 254, which also involved an offence against s 33 of the Act, in which the Court declined to intervene with a sentence of 10 years 8 months with a non-parole period of 8 years. In that case the primary judge found that the offence, which was a "glassing" offence fell slightly above the mid-range of objective seriousness. That authority was relied upon in aid of a submission that the finding in the present case was erroneous since, as it was put, the objective seriousness of that offence was "arguably less serious" than in the present case. I derive little assistance from such a line of reasoning. I am singularly unpersuaded that error is established simply because another judge, confronted with a set of circumstances which bore some similarities to the present case, arrived at a different conclusion as to where the offence in that case lay on the scale of objective seriousness. Such an approach would be at odds with the principles expressed in Mulato (supra). I note in passing that the offender in Mackey was on parole in respect of three offences of manslaughter at the time he committed the offence in question. 36 In relation to the third asserted error, it was submitted that in view of the respondent's prior offending, the sentencing judge should have had regard to the principles enunciated in Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477-8. It was further submitted that his Honour erred in failing to do so. As I detect no error in his Honour's approach, this submission must be rejected. Not only did His Honour make detailed reference to the respondent's prior criminal record, and in particular to the previous "glassing" offence, which he described as a "glaring aggravating factor" but he treated his prior criminal record as a factor which in any event aggravated the present offence. Although his Honour may not have referred, in terms, to Veen (No 2), it is clear that his Honour applied, and gave effect to, the principles which it established.

37 The fourth and final error which is asserted, amounted to a complaint that the sentencing judge erred in finding "special circumstances" and that in doing so appeared to have engaged in an element of "double-counting". This submission was described as being in the alternative to the primary challenge which was, as I have said, that the standard non-parole period should have been imposed. It was contended that if this alternative submission were to be accepted, then the consequence should be that the court would "intervene to restore the statutory ratio". In other words, it was submitted that the court should substitute a non-parole period of six years for the present non-parole period of five years. It is difficult to see how such an outcome could be accommodated given the restraint that attends the determination of Crown appeals and, for that reason alone, I would reject the submission. But in any event, it was well open to the sentencing judge to make a finding of "special circumstances" for the reasons which his Honour gave. Indeed, it was appropriate to do so because a young offender with a mental disorder could well be considered to be likely to benefit from an extended period of supervision in the community following a fairly lengthy period of incarceration. Nor, given his Honour's findings that the respondent had expressed genuine remorse for his actions and that he had made positive changes since he had been in custody, would I be inclined to conclude that his Honour erred in finding that the respondent's prospects of rehabilitation were "reasonable to good". 38 It may well be that the sentence imposed in the present case was a lenient one but that is not a sufficient basis to warrant the intervention of this court. For the foregoing reasons, I propose that the Crown appeal be dismissed. 39 RA HULME J: I agree with Buddin J. **********

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