R v Dixon; R v Pearce; R v Pearce

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

Carroll v The Queen [2009] HCA 13; [2009] 83 ALJR 579 CASES CITED : R v Donovan 1934 2 KB 498 R v Way (2004) 60 NSWLR 168

REGINA - Appellant PARTIES: Cameron DIXON - Respondent Adel Benjamin PEARCE - Respondent Jamal PEARCE - Respondent

FILE NUMBER(S): CCA 2008/3279; 2008/3243; 2008/3280

V Lydiard - Crown/Appellant COUNSEL: P Strickland SC - Respondent/Dixon M Dennis - Respondent/Adel Pearce A Francis - Respondent/Jamal Pearce

SOLICITORS: Solicitor for Public Prosecutions - Crown/Appellant Legal Aid Commission - Respondents

LOWER COURT FILE NUMBER(S): 2008/3279; 2008/3643; 2008/3280

CCA 2008/3279 CCA 2008/3243 CCA 2008/3280

GROVE J BUDDIN J PRICE J

8 July 2009 R v Cameron DIXON R v Adel Benjamin PEARCE R v Jamal PEARCE Judgment 1 GROVE J: The Crown has instituted appeals asserting the manifest inadequacy of sentences imposed on 11 February 2009 by Phegan A/DCJ at Gosford District Court upon each of the three respondents, Cameron Lindsay Dixon, Adel Benjamin Pearce and Jamal Pearce. To avoid confusion concerning the two lastmentioned I will, without intending any disrespect, refer to them by their respective forenames. With the exception of one separate charge against Adel, the charges sought to fix individual culpability on all of the offenders as participants in an affray but a joint liability of Adel and Dixon for an offence committed by Jamal as principal. The proceedings at first instance and on appeal were heard together, but, of course, different factors are pertinent to the individual respondents. Each respondent pleaded guilty to the charges against him. 2 The facts found by the judge were extracted from an agreed statement which had been tendered. I will not repeat all of the detail which was recapitulated in his Honour's remarks on sentence but I will chronicle prominent actions of the respondents which gave rise to the charges. 3 At about 3 am on 15 September 2007 the respondents were at a nightclub (Mojo's) in Baker Street, Gosford. A fight among patrons, not initiated by any of the respondents, broke out. Security guards intervened to restrain the combatants and others began to join in. The owner of the club (Lawrence Baker) was restraining a person as a result of which he became wedged against a wall and unable to defend himself. Adel attacked him, punching him in the face three times. Mr Baker's face was bruised and cut. Eight sutures were required to repair cuts to his nose and under both eyes. Adel was charged with assault occasioning actual bodily harm. Dixon and Jamal were not participants and were not charged in respect of this assault. 4 The melee continued as the removal of the respondents and others from the premises was undertaken. However, Dixon ran back and punched one of the persons in a group which had gathered near an entry door. Adel did something similar. Next, Dixon punched a security guard, Russell Walker, on the side of the head. Each of the respondents asked his Honour to take into account on sentence pursuant to the Form 1 procedure, an offence of common assault upon Mr Walker. 5 Adel and Dixon, as well as security guards and patrons, moved into the street. The product of a CCTV camera is described as showing a person (not identified) appearing to wave an extendable baton in a threatening manner. Jamal had (temporarily) left the immediate area. Dixon and a guard, Darren Devine, shaped up to each other in a stance such as boxers adopt but they then dropped their arms. Dixon ran and struck him in the face with his fist. This was the subject of a second charge of common assault asked by all the respondents to be taken into account on a Form 1. 6 Jamal had returned to where people were gathered outside the Club and Adel and Dixon joined him. Jamal then took some beer bottles from a bin and commenced smashing them on the road. He threw the remnants of one bottle striking a person in the upper chest area. Adel also equipped himself with bottles which he threw, and at least one of them struck a person somewhere in the neck and shoulder area. Dixon did not arm himself with bottles but picked up a large piece of corrugated iron. 7 Two men were on the ground, wrestling. The respondents ran towards them. Adel threw another bottle which struck a man, Luke Barker, in the face. Dixon swung the iron sheet at one of the persons on the ground but it did not make contact. Jamal stamped on one of the men who was down on the roadway and struck him with a bottle which he was holding. He then threw the bottle, striking Mr Barker on the head. Adel and Dixon became engaged in a struggle with another man at the conclusion of which Dixon dragged him along the road, kicked him and then walked away. 8 It was the bottle thrown by Jamal which caused the most serious injury. Mr Barker suffered an indentation compression fracture of the skull as well as a crack fracture through the full skull thickness, fracture of the right zygoma, comminuted fractures of the right maxillary sinus, two separate fractures of the right zygomatemporal arch and head and facial lacerations. A titanium plate was required to be inserted in his cheek and his right retina was torn. He has resultant vision difficulties which assessment suggested could be permanent. 9 Arising out of the attack upon and the injuries suffered by Mr Barker, all respondents were charged with maliciously inflicting grievous bodily harm with intent to cause that harm. The violence used upon him and other persons described in the above brief sketch of the facts was the basis of a charge of affray against each of the respondents. 10 The prescribed maximum penalties for the relevant offences are as follows: for maliciously inflicting grievous bodily harm with intent, imprisonment for 25 years in respect of which a standard non-parole period of 7 years is set; for affray, imprisonment for 10 years and for assault occasioning actual bodily harm (Adel only), imprisonment for 5 years. 11 His Honour imposed these sentences on the respondents (I will note now and not recite the taking into account of the two offences of assault on each Form 1):

CAMERON DIXON (a) For maliciously inflicting grievous bodily harm with intent: to imprisonment consisting of a non-parole period of 2 years commencing on 21 February 2009 and expiring on 20 February 2011 with a balance term of 1 year.

(b) For affray: to imprisonment for a fixed term of 12 months commencing on 21 February 2009 and expiring on 20 February 2010.

(c) Both sentences to be served by way of periodic detention.

(a) For assault occasioning actual bodily harm: to imprisonment for a fixed term of 12 months commencing on 8 February 2009 and expiring on 7 February 2010.

(b) For maliciously inflicting grievous bodily harm with intent: to imprisonment consisting of a non-parole period of 2 years commencing on 8 May 2009 and expiring on 7 May 2011 with a balance term of 3 years 3 months.

(c) For affray: to imprisonment for a fixed term of 12 months commencing on 8 May 2009 and expiring on 7 May 2010.

The effective sentence received by Adel Pearce was therefore a total term or head sentence of 5 years 6 months with a minimum custody of 2 years 3 months before eligibility for consideration of parole. The non-parole period is the equivalent to about 41 percent of the total term.

(a) For maliciously inflicting grievous bodily harm with intent: to imprisonment consisting of a non-parole period of 2 years commencing on 11 February 2009 and expiring on 10 February 2011 with a balance term of 3 years 3 months.

(b) For affray: to imprisonment for a fixed term of 12 months commencing on 11 February 2009 and expiring on 10 February 2010.

The effective sentence received by Jamal Pearce was thus the sentence imposed in respect of the firstmentioned offence. The non-parole period (with which the fixed term is wholly concurrent) is equivalent to about 38 percent of the total term. 12 It is observed that his Honour purported to order the release of Adel and Jamal to parole at the expiry of their respective non-parole periods. As their longer sentences exceeded three years, actual release will be a matter for the parole authority and the date of expiry of the non-parole periods should have been specified as the earliest date of eligibility for parole: see sections 48 and 50, Crimes (Sentencing Procedure) Act 1999. 13 In each appeal the sole ground expressed in the Director of Public Prosecution's notice was that the sentences (as detailed) "are manifestly inadequate". Expression in that form accords with a long established practice in appeals pursuant to s 5D of the Criminal Appeal Act and the prompt lodgement of notice would reflect a recognition that there should be only the minimum delay necessary in informing an offender that an increase in sentence is sought. If it is intended to allege specific error by the sentencing judge it has been the practice to identify contentions in the written submissions required to be filed in support of the appeal. That practice would perceptibly avoid any surprise or prejudice to the respondent. Nevertheless, the recent statement in the joint judgment in Carroll v The Queen [2009] HCA 13 should not be overlooked: "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 The King (1936) 55 CLR 499: 'It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposed in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 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 considerations. 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 ." (emphasis added) 14 When the matter was raised at the hearing the Crown Prosecutor did not seek to amend or add to the expressed ground and, as I understood her, relied upon the matters to which she pointed as reasons for concluding that there had been what has generally been referred to as latent error in distinction from specific error of the type exemplified in House. 15 The focus of the Crown argument was upon the offence of intentional infliction of grievous bodily harm which it will be convenient to call the "s 33 offence" by reference to the provision in the Crimes Act. The Crown Prosecutor expressly noted that no complaint was made about the sentences imposed for the s 33 offence and the sentences for affray being served concurrently with each other and, for present purposes it will suffice to focus upon the former. That is not to say, of course, that in overall assessment the commission of the offence of affray will be ignored. 16 I turn to the individual respondents.

CAMERON DIXON 17 As the above sketch of facts demonstrates, the participation by Dixon did not result in significant injury which had been personally inflicted by him on anyone. Neither of the common assaults perpetrated by him on Mr Walker and Mr Devine involved an allegation of causation of harm. As the lowest category "actual bodily harm" includes any hurt or injury calculated to interfere with the health or comfort of the victim which is more than transient or trivial: R v Donovan 1934 2 KB 498, it can be inferred that these common assaults were of a low level of consequence. 18 Neither did Dixon personally equip himself with a bottle and therefore he did not throw or strike anybody with one. The sentencing judge found, and noted that it had not been suggested otherwise, that when Dixon wielded the piece of corrugated iron it did not make actual contact. His behaviour however clearly showed his guilt of the offence of affray. 19 His liability for the s 33 offence was not as immediately obvious. The Court enquired of the Crown Prosecutor about the basis of Dixon's liability for that offence. It had been referred to in written submissions as a joint criminal enterprise and in response to enquiry it was said to consist of an agreement to engage in a fight involving the use of weapons, as a result of which the victim, Luke Barker, sustained the injuries above described. Whilst Dixon was undoubtedly involved in the affray and pleaded guilty to that count, which charged that he used unlawful violence towards Luke Barker and other persons, there was no evidence (derived from the agreed facts or elsewhere) that Dixon's own conduct towards Mr Barker was different from that which he directed towards other persons. 20 In the course of argument the Court also drew attention to the express contention relating to the s 33 offence in written submissions on behalf of Dixon, namely: "The plea of guilty encompasses no more than an admission that the respondent was part of a joint criminal enterprise to cause injury to certain people, and he foresaw the possibility that the other co-offenders would cause Luke Barker grievous bodily harm. That is significantly less objectively serious than having an intention to cause Luke Barker grievous bodily harm."

21 It is important to stress that the Crown accepted this submission and, in answer to specific inquiry, confirmed that it did not contest that part of the submission including, in particular, the final sentence in the extract just quoted. 22 The critical damage to Mr Barker having been a consequence of the use of bottles as weapons with which aspect Dixon was not personally involved, an assessment that the Crown case against him under s 33 charge was of low cogency is compelling. In that circumstance, Dixon's plea of guilty was of enhanced value and offered significant confirmation of the harbouring of remorse. 23 The evidence included a summary of what had been captured by CCTV located in the vicinity of the club. It recorded times of various events with considerable precision and the accuracy of that record was not disputed. The s 33 offence was constituted by a co-offender arming himself with a bottle as the initial event by which Dixon could have the requisite mental state in accordance with the unchallenged submission. It can be deduced from the record that Dixon was in that state for a total time of about twenty seconds after which the offence was complete. His role in the affray also ended about fifteen seconds after the completion of the s 33 offence. The submission that Dixon's culpability should be viewed as being encompassed in an extremely short period should be upheld. 24 There were significant matters of mitigation available to Dixon. He was twenty three years of age when he offended. His only conviction in New South Wales was for driving on a road, never having held a licence, for which he was fined. He has a conviction before a Magistrate's Court in Queensland for "fraud". It appears that, in a retail store, he exchanged price tags so as to pay a lesser sum for an item than he should have. It is perhaps curious that if he had stolen the item, thereby attempting to pay nothing, his record probably would show a conviction for some form of petty larceny, whereas for seeking to pay less than he should have, the record is of a conviction for a somewhat more ominous sounding offence. 25 This comparatively minor record would offer little weight against an entitlement to leniency. This was the way in which the sentencing judge obviously treated it. 26 As either new or fresh evidence, the respondent sought to tender (annexed to an affidavit by his solicitor) a report by a psychologist, Professor Hayes, and a letter of reference from a Mr Steve Ella, a drug and alcohol service counsellor. The tender was opposed by the Crown and it was indicated that a ruling would be given when judgment was delivered. For the purpose of making such a ruling, I have looked at the documents. 27 Professor Hayes saw the respondent on 28 April 2009. The appeal was heard the following day. Professor Hayes took some history from the respondent and administered some tests. Although it was mentioned that the respondent was aware that the "current proceedings" were an appeal, Professor Hayes' opinion was directed to her view of his fitness to be tried. That is an issue which I would consider to be psychiatrically rather than psychologically determined but it is not necessary to pursue this matter. What counsel is seeking to rely upon are results and opinions contained in a report concerning the respondent's intellectual functioning. The sentencing judge, noting that Dixon did not give evidence and counsel's assertion that he had difficulty expressing himself, found that from reading his personal history he accepted that explanation for the failure to give evidence. What seems to be sought to be derived from the report is a statistical IQ assessment which would add little if anything to his Honour's acceptance of the respondent's handicap and the reasons for it. 28 Mr Ella's letter self evidently relates to post sentence occurrences but these too are compatible with his Honour's findings concerning the prospects of Dixon's rehabilitation. The affidavit also exhibits a letter from an employer and a confirmation of Dixon's diligent attendance at periodic detention. 29 On the issue of tender I would uphold the Crown's objection. I would confirm however that I accept his Honour's findings concerning the respondent's handicaps and the afflictions which they imply. 30 There was before his Honour material concerning problems that Dixon had had with drugs and alcohol and his efforts to overcome them. It is not necessary to expand upon these matters. 31 The essential issue for the Court is whether the sentence has been shown to be manifestly inadequate. A conclusion needs to be based upon the cumulation of matters referred to in the foregoing. In my opinion it has not been demonstrated that the sentence received by Dixon is manifestly inadequate and I would dismiss the Crown appeal in his case. 32 I have not overlooked the Crown submissions concerning specific error to some of which I will refer in dealing with other respondents. Even if demonstrable error would make appellate intervention on sentence available I would refrain from so doing for the reason just expressed, namely, that the ground of manifest inadequacy has not been made out.

ADEL BENJAMIN PEARCE 33 The subject offences were committed on 15 September 2007 and the sentencing proceedings in the District Court were heard on 9 and 11 February 2009, submissions being made on the lastmentioned date. Adel had a record of prior offending extending from 2003 to 2008. The record was lengthened by various call-ups for breaches of bonds originally granted and, on one occasion, for revocation of a periodic detention order. I will not set out the record in full, however in February 2006 Adel was convicted of stalking or intimidating with intent to cause harm and of assault occasioning actual bodily harm, for which he was respectively, placed on a bond and required to serve 200 hours community service. In January 2007 he was called up for breach of the latter and the community service order extended for six months. In April 2007 he was called up for breach of the former and fined $1,000. In October and December 2007 he was twice again called up for breaches of the community service order in respect of the assault occasioning actual bodily harm offence. On the last occasion he was, in lieu, imprisoned for three months which was to be served by periodic detention. In March 2008 this was revoked and a fixed term of one month six days imprisonment ordered to be served. In July 2007, among other offences, Adel was convicted of affray for which he was fined $700 and placed on a good behaviour bond for 18 months. In December 2008, called up for breach of the bond, he was given a suspended sentence of nine months imprisonment and at the same time received a further suspended sentence of 12 months for resisting an officer in the execution of his duty. 34 In the meantime, in March 2008 he was sentenced to three months imprisonment for attempting to bring a contraband item into a detention facility. An appeal against this sentence was dismissed in May 2008. 35 The existence of this record offers a considerable hurdle to a claim by Adel for leniency. 36 As already observed, although the eruption which became the affray had obviously started, it was the independent assault occasioning actual bodily harm by Adel which was the first offence in time by any of these respondents. The victim, Lawrence Baker, sustained bruising as well as cuts. As earlier mentioned, the cuts required treatment including eight sutures under his eyes and across the bridge of his nose. Although it was a bottle thrown by Jamal which caused the very serious damage sustained by Mr Barker, Adel also harmed himself with bottles and was seen to be throwing them. 37 In his remarks on sentence the judge referred first to subjective matters concerning Adel. He accepted a history set out in a psychological report which described an unfortunate upbringing and a descent into drug abuse. He noted the evidence of the respondent, his partner who was at the time pregnant with his child, and his (and Jamal's) mother. His Honour found that with the exception of cannabis, Adel had succeeded in abandoning the use of drugs completely. However the respondent continued to use cannabis and his Honour thought that there seemed to be a degree of dependence on that drug remaining. 38 His Honour found that the s 33 offence could be classified as "mid-range" for that type of offence. That finding is accepted by the Crown but it is contended that his Honour erred in using the term of seven years, the standard non-parole period prescribed for that offence as a "starting point" for sentence assessment. There was a plea of guilty and it is of course accepted that the applicability of the standard non-parole period needs to be understood in the light of authority such as R v Way (2004) 60 NSWLR 168 but it was argued for Adel that, although his Honour selected seven years as the notional starting point for sentence, he did not do so because it was the standard non-parole period. 39 Following reference to Way, his Honour mentioned the standard non-parole period and stated: "It provides at the very least some sort of starting point for what is generally described as the 'mid range' offence of this kind". 40 I would reject the contention that the term of seven years was coincidentally chosen and I would uphold the Crown submission that his Honour's remarks must be understood as choosing that period because it was the standard non-parole period. In that regard, error has been demonstrated. His Honour's following remarks confirm the nature of the error as he continued: "That leads me then to address the question, where in the general range the actions of the co-offenders in this case fall". 41 Confusion is evident in using as a guide a figure which relates to non-parole period when considering the appropriate term or head sentence for the offence. I do not overlook the allied submission by the Crown that his Honour also erred in using the same facts as found to justify departure from the standard non-parole period and then to divide the sentence into non-parole period and balance term in favour of the offender but, the error abovementioned having been demonstrated, it is not necessary further to elaborate. 42 As is common in all instances, the issue is whether in the whole of the circumstances the sentence has been shown to be manifestly inadequate. The circumstances in which the injuries were inflicted upon Mr Barker and their very severe consequences have been set out above. The sentence imposed reflects a gross underestimation of the objective seriousness of Adel's offending and falls below the lower point of discretionary range. In my view, in the case of Adel, the ground is made out. On the question of resentence account should be given, however, not only to such favourable subjective findings concerning the respondent as were made by his Honour but to additional material contained in the respondent's affidavit which demonstrates a commendable response to custody thus far. Nor was he challenged upon these statements in the affidavit, namely: "6. They do random urines here but I haven't had one. I am drug free and plan to remain so for the rest of my life. I'm happy to keeping having random urine testing. 7. I think about the offence. I regret all of it. I've put my name down to go to the Restorative Justice Unit. I want to apologise to the victim. I feel so sorry for him. I just think of how I'd feel if I was in his shoes. I look at it as if it's my past life. I come from a good hardworking family. I want my brother and sister to look up to me. I don't feel like the person I was anymore. The drugs stop you from seeing these things. I care now." 43 Where this Court proceeds to resentence after successful Crown appeal, it is well established that the notion of double jeopardy be recognized and an amelioration applied to the new imposition. Taking all factors into account, I would assess an overall total sentence for the s 33 offence of 6 years 3 months. Reapplying the structure which included accumulation of 3 months for the separate offence of assault occasioning actual bodily harm, there would be an effective overall sentence of 6 years 6 months. I would continue a finding of special circumstances and divide the sentence for the s 33 offence into a non-parole period of 3 years and a balance term of 3 years 3 months. In overall effect the proportion between minimum custody and total term will be 50 percent as distinguished from the present proportion of 41 percent. It follows that the minimum time in custody before eligibility for parole will increase from 2 years 3 months to 3 years 3 months.

JAMAL PEARCE 44 The learned sentencing judge dealt with subjective matters concerning Jamal to some extent by simply noting a similarity with the factors which affected Adel. Jamal's prior record had nothing like the length of that of his brother. Of significance were convictions in March 2006 of two charges of assault occasioning actual bodily harm and a charge of stalking or intimidating, for which he received 200 hours community service, a suspended prison sentence (8 months with a non-parole period of 6 months) and a bond to be of good behaviour for 18 months. 45 Of further significance was his Honour's finding that, like Adel, Jamal had succeeded in terminating his use of "hard drugs" but he continued to use cannabis and "seemed even more reluctant than his brother to stop using it altogether". 46 As a matter of objective seriousness, it cannot be overlooked that it was the act of Jamal personally in throwing a bottle that caused the very serious injuries to the victim of the s 33 offence. 47 I will not repeat what has been said in relation to the other respondents but in my view, even more emphatically than in the case of Adel, the sentence received by Jamal for the s 33 offence was manifestly inadequate. Although Jamal was the primary offender, he was nevertheless the youngest of the three respondents, and, as above noted, his prior record was far better than that of his elder brother. 48 Taking all factors into account (including his evidence which the sentencing judge accepted) I would assess the sentence for the s 33 offence to replace that imposed in the District Court by a sentence of 6 years and 3 months, accepting and continuing a finding of special circumstances I would divide into a non-parole period of 3 years and a balance term of 3 years 3 months. 49 This is identical to the term for that offence received by Adel but, of course, Jamal has not cumulation for the offence of assault occasioning actual bodily harm in which he was not involved. It follows that the non-parole period overall to be received by Jamal would be about 48 percent of total term as distinct from the present proportion of about 38 percent.

THE ORDERS 50 In the cases of Adel and Jamal the result which I favour can be reached simply by resentence on the count for the s 33 offence. It may be taken that the offences on the Form 1 have been taken into account. 51 I propose the following:

(1) Crown appeal against sentence allowed. (2) Sentence imposed on count 2 (maliciously inflict grievous bodily harm with intent) quashed and in lieu thereof the respondent sentenced on that count to imprisonment consisting of a non-parole period of 3 years commencing on 8 May 2009 and expiring on 7 May 2012, with a balance term of 3 years 3 months commencing on 7 May 2012. (3) Sentence on counts 1 and 3 to stand. (4) The earliest date of eligibility for release to parole specified as 7 May 2012.

(1) Crown appeal against sentence allowed. (2) Sentence imposed on count 1 (maliciously inflict grievous bodily harm with intent) quashed and in lieu thereof the respondent sentenced on that count to imprisonment consisting of a non-parole period of 3 years commencing on 11 February 2009 and expiring on 10 February 2012, with a balance term of 3 years 3 months commencing on 10 February 2012. (3) Sentence on count 2 to stand. (4) The earliest date of eligibility for release to parole is specified as 10 February 2012. 52 BUDDIN J: I agree with Grove J. 53 PRICE J: I agree with Grove J. **********

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