R v Douglas [2007] NSWCCA 31 | Case summary

Wednesdsay 14 February 2007 R v PAUL ROBERT DOUGLAS Judgment 1 BELL J: This is an appeal brought by the Director of Public Prosecutions against the asserted manifest inadequacy of sentences imposed on the respondent in the District Court at Parramatta on 20 October 2006. The respondent was convicted of two offences contrary to s 35(1) of the Crimes Act 1900 involving two victims, both of which occurred in the course of an incident on 18 August 2003. 2 The respondent was arraigned on an indictment containing three counts. Count 1 charged him with the malicious infliction of grievous bodily harm with intent to cause grievous bodily harm to Joseph Slominski: an offence contrary to s33 (maximum penalty 25 years' imprisonment). The respondent pleaded not guilty to this count. Count 2 charged the respondent in the alternative with the malicious infliction of grievous bodily harm to Joseph Slominski contrary to s 35(1)(b). The respondent pleaded guilty to this offence (maximum penalty of seven years imprisonment). Count 3 charged the respondent with the malicious wounding of David Grooms. The respondent pleaded guilty to this offence, which is provided by s 35(1)(a) (maximum sentence of seven years' imprisonment). 3 The Crown did not accept the respondent's plea to the alternative count in full discharge of the indictment. After a trial lasting three days the jury returned verdicts acquitting the respondent of the offence charged in count 1 and convicting him on the alternative count. 4 The Judge sentenced the respondent for the offence against Joseph Slominski to a non-parole period of twelve months, with a balance of term of eight months and ordered that the execution of the sentence be suspended on condition that the respondent entered into a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of twenty months. 5 The respondent was sentenced for the malicious wounding of David Grooms to a non-parole period of ten months with a balance of term of five months, the execution of the sentence being suspended on condition that the respondent enter into a bond to be of good behaviour for 15 months. 6 The notice of appeal is dated 26 October 2006. We are informed that the respondent was served with a copy of the notice on 3 November 2006. No question of delay in bringing the appeal has been canvassed on the hearing. 7 The Crown submits that the Judge erred in a number of identified respects and that in combination these errors have produced sentences that are manifestly inadequate. The principal error on which the Crown relies relates to the determination that the execution of the sentences be suspended. The Crown submits that the Judge's factual findings relating to the offence involving Joseph Slominski were unclear and in at least one respect, not open. The Crown submits that his Honour erred in the favourable assessments that he made of the respondent's prospects of rehabilitation and the unlikelihood of re-offending. Associated with the latter challenge is the contention that his Honour failed to treat the circumstance that the respondent was serving a community service order at the date of the offences as an aggravating factor. 8 At the sentence hearing the Crown Prosecutor handed up a document titled "Crown summary of case on sentence" which contained the Crown's submissions as to the factual findings that the Judge should make for the purpose of sentence. The Crown summary was not an agreed statement of facts. The Judge made his factual findings upon the evidence given at the trial. It is convenient to refer to the Crown's summary, which his Honour described as being, broadly speaking, a fair one, and then to identify the areas that were in issue and his Honour's findings in relation to them. On 18 August Joseph Slominski was residing in premises in Doonside with his wife, Beverley Grooms and her son, David Grooms. Joseph Slominski was aged 58 years. There was a history of animosity between David Grooms and the respondent. There was also a history of animosity between members of both families.

Slominski was taken to Mount Druitt Hospital. He suffered two fractures to his jaw and a depressed fracture of his cheekbone between the eye socket and the ear. He was operated on to repair the injuries, with the insertion of bone plates. 9 The respondent gave evidence at the trial. He did not give evidence on the sentence hearing. At issue in the trial, and on the sentence hearing, was the number of blows delivered to Slominski, and whether Slominski had armed himself with an aluminium baseball bat, as the respondent claimed he had. The Judge did not find that Joseph Slominski had been in possession of a baseball bat. 10 His Honour's findings concerning the extent of the assault on Joseph Slominski appear at ROS 5-6: The offender struck Joseph Slominski to the head and Joseph Slominski said he saw stars and fell to the ground. The offender continued to hit Joseph Slominski a number of times while he was on the ground. That particular fact is disputed by the defence. However, there was evidence from Kim Sammut that she observed this. I have to find facts that I regard beyond reasonable doubt in these cases. I take into account that the offender disputes that. In fact, the Crown points out that David Grooms and Joseph Slominski both said that when he was on the ground in a foetal position. However, I form the opinion of both David Grooms and Joseph Slominski as being unreliable witnesses when I heard them in the witness box and I think it consistent with the feud that is between the two families unfortunately. Two neighbours, Kim Sammut and Sharine Burgoine, heard the incident. Kim Sammut went outside her place, her place at ... Doonside, there was a sensor light that came on. She saw the offender strike two people with a metal pole. The second struck was an older person, Joseph Slominski, who was not armed with anything and was back pedalling at the time she saw him fall. She saw the older person fall to the ground and the person attacking then strike the older person whilst he was on the ground. According to Kim Sammut, this happened at least five times. Kim Sammut called out the words, 'Don't hit him with the pole again or I'll shove it up your arse'. The offender stopped hitting Joseph Slominski. The offender told Kim Sammut that something had happened at his sister's house previously. 11 The Crown contend that his Honour's finding is unclear. In written submission the Crown went on to assert: If in fact his Honour was making a finding that the respondent did not continue to hit Joseph Slominski while he was on the ground, the Crown would submit that that was an error on the part of the sentencing judge and that error is reflected in the manifestly inadequate sentence. 12 The respondent's plea was an admission that he struck Joseph Slominski thereby occasioning grievous bodily harm to him. The assertion that he had repeatedly struck him as he lay disabled on the ground was not admitted. It was open to the Judge to be satisfied beyond reasonable doubt, despite his reservations with respect to the reliability of the evidence of Slominski and Grooms, that the respondent had repeatedly struck Slominski as he lay on the ground. However, to my mind it is not clear that he did. The facts were for his Honour's determination based on the evidence at the trial. The question of the number of blows and the circumstances in which they were delivered was relevant to the assessment of the objective seriousness of the offence. It was a prominent issue at the trial and it is unfortunate that his Honour's findings are uncertain. 13 On the hearing of the appeal the Crown did not press the contention that it had not been open to the Judge to find otherwise than that the respondent repeatedly struck Joseph Slominski as he lay on the ground. The appeal is to be determined on the basis this circumstance of aggravation was not established. 14 The respondent was aged 29 at the date of the offences and he was 31 years of age when he appeared for sentence. The pre-sentence report details of the respondent's contact with the Probation and Parole Service: Mr Douglas first came into contact with this Service in February 2001 he was convicted of "Maliciously Destroy Or Damage Property" and "Assault Occasioning Actual Bodily Harm x2" and he subsequently received 2 concurrent Section 9 Bonds. The offender failed to comply with the requirements of these orders as he failed to report and failed to notify this Service of an address change, subsequently he was breached. However, "No Action" was administered by the courts in relation to this Breach. In 2003 Mr Douglas was convicted of the offence of "Possess Housebreaking Implements", he received a sentence of 200 hours Community Service. Mr Douglas failed to comply with the requirements of his Order as continued to "fail to report" resulting in his order being revoked. Furthermore, on 24 November 2005 Mr Douglas was convicted of the offence "Have Custody of an offensive implement in a Public Place". Mr Douglas was then sentenced to 100 hours of Community Service. Service records indicate that the offender again failed to comply with the requirements of this order as he continued to "fail to report", subsequently his order was revoked. It is of concern that whilst Mr Douglas has been provided the opportunity of community based supervision options in the past he has failed to comply with the requirements of any of his Orders. 15 The pre-sentence describes the respondent's background. At the date of the report the respondent was residing with his father, who was described as suffering from a longstanding addiction to alcohol. The respondent was reported to be having an "on and off again" relationship over thirteen years with his former partner. There are three children of the union and the respondent is actively involved in their lives. He described a loving and supportive family in his early childhood years. This was disrupted by his parents' separation when he was aged 13. For a time the respondent lived with his mother and in this period he suffered physical abuse at the hands of her new partner. Subsequently his father regained custody of him. Later his mother ceased her relationship with her abusive partner and from this time the respondent resided equally with each of his parents. His mother died in 2003 and her death was a deeply felt loss. The respondent left school in year 8. He had various short-term jobs from when he was aged 16. A former employer described him as being "a good worker who was reliable and hard working". 16 The author of the pre-sentence report noted that the respondent had become agitated in the course of interview and commented that he was a person easily provoked, especially when discussing his attitude to "impulse control issues". The author considered that the respondent minimised and rationalised his behaviour with respect to the offences, describing the incident as a fight and justifying his actions by the claim that he and his family had been the ones attacked. 17 The Probation and Parole Service assessed the respondent as being suitable for medium/high level of intervention, observing that an individualised case plan for the respondent would include strategies such as a referral to a culturally appropriate counselling service to help address his anger-related issues. In the event, the Judge did not require the respondent to be subject to supervision during the currency of the s 12 bonds. The respondent was assessed as unsuitable for a community service order due to his recent failure to comply with previous orders. He was assessed as suitable for a periodic detention order. 18 Evidence was led at the sentence hearing of the injuries sustained by David Grooms. He had been examined in the Emergency Department of the Blacktown Hospital on the evening of 18 August 2003. He had a 10 centimetre uncomplicated laceration over his left forehead. He was neurologically intact. There was bruising over his right knee. X-ray did not reveal any obvious fractures. The laceration was sutured and he was advised to follow up his injury with his local doctor. 19 In assessing the objective seriousness of the offences, the Judge referred to the history of bad feeling between the two families. His Honour went on to say: There was provocation by the victims, as far as the facts are known, they provoked the episode of the - the offender in my opinion's main culpability is that he took the law into his own hands. Have not got evidence of whether the police actually responded twice to his sister's calls for the police to try and intervene in this. I just do not have that evidence but it would seem to me anyway that Mr Douglas did take the law into his own hands and continued this melee, as the Crown puts it. And I agree it was a melee. But when one considers, what is the degree of criminality in this? The crime seems to me to be an action and reaction to an ongoing dispute that happened on the one day. It is a dispute of course which caused harm and especially as the Crown pointed out to a fifty-eight year old person, Mr Slominski who had a broken jaw. I do not regard them coming out of the house as further provocation when they were called out by Mr Douglas but nevertheless, one of the protagonists was armed with this mag light. The defence says that Mr Slominski was armed with a baseball bat, but that on the evidence I have heard, I cannot find that. But certainly at one stage, he was armed with a tree branch. 20 As the Crown observed, and as Ms Loukas, who appears for the respondent, acknowledged, there was no evidence that Joseph Slominski had been involved in any of the incidents that had taken place earlier in the course of the day. 21 Ms Loukas submitted that his Honour's references to provocation were to be understood as going to the respondent's motivation and not as involving any finding that Joseph Slominski had provoked the assault. I have some difficulty in reading his Honour's remarks as confined in this way. 22 The Crown's challenge to the Judge's assessment of the offences, particularly that involving Joseph Slominski, has merit. This is underlined by his Honour's reference to Mr Slominski being armed with a tree branch. Mr Slominski was in his own home when he heard the sounds of banging and went out to investigate. He was confronted by the respondent wielding a length of pipe and another implement. It is difficult to see how the fact that Mr Slominski may have sought to defend himself from this unlawful assault by picking up a branch of a tree is relevant to the assessment of the seriousness of the offence. 23 His Honour noted that the respondent had not been sentenced to a term of full time custody. He went on to say this: His record although not pristine does contain offences but nevertheless whilst I cannot use them to be lenient, it is not the most serious record, and I am satisfied that there are good prospects of rehabilitation. ... I think there are good prospects of rehabilitation. I think it is unlikely he would re-offend in this particular way although who knows if this feud is ever going to stop, but surely the parties should realise that there has got to be an end to this bad feeling between them and I cannot regard a feeling of remorse as a mitigating factor. ... I regard his criminal record as of a person of 32, whilst not impeccable, a lot of it is to do with useful disregard for authority. Imprisonment, as section 5 says, is a last resort. I am satisfied that the submission of Mr Murray that a suspended sentence and he characterises it as a self monitoring form of imprisonment. Perhaps that is an optimistic view of things, but nevertheless I am satisfied that the appropriate sentence in this case is that. 24 His Honour correctly observed that the maximum sentence for each offence was seven years' imprisonment. He allowed a discount of 15 percent to reflect the utilitarian value of the respondent's pleas of guilty which had not been entered at the earliest opportunity. 25 It is clear that the Judge approached the proceeding on the basis that in each case the sentence would be wholly suspended before determining the term of the sentence and that in this respect his Honour failed to apply the principles enunciated in R v Zamagias [2002] NSWCCA 17. It was necessary to determine the term of the sentence before considering whether circumstances justified the further determination that the sentence be suspended. 26 In written submissions the Crown complained that his Honour failed to consider the appropriate sentence for each offence and then to direct some measure of accumulation, which was said to be consistent with the approach in Pearce v R (1998) 194 CLR 610 at 624. The offences occurred in the course of the same incident. It will frequently be the case that where offences committed in the course of one incident involve separate victims it will be appropriate to direct some measure of cumulation, but this is not to be elevated into a principle on sentencing for the reasons explained by Simpson J in R v Hammoud 118 A Crim R 66 at 67. I reject the submission that it was not open to the Judge to determine that the sentences should be served concurrently. The force of the Crown's challenge, as was made clear on the hearing of the appeal, was to the decision that the execution of the sentences be suspended. 27 The only material before the Judge touching on the respondent's prospects of rehabilitation and the likelihood of re-offending were his criminal record and the pre-sentence report. I am mindful that his Honour had the benefit of seeing the respondent give evidence at the trial. However, it is common ground that the respondent's evidence was confined to the facts surrounding the offences. In these circumstances it is difficult to see that his Honour had material before him justifying the finding that the respondent's prospects of rehabilitation were good. His Honour found that it was unlikely that the respondent would re-offend. This finding was qualified by the words "in this particular way" (ROS 16.8). It is not clear what his Honour meant in this respect. The respondent's criminal record as an adult, while not extensive, included a conviction for assault occasioning actual bodily harm. He has repeatedly failure to comply with the requirements of non-custodial sentencing orders. He had been convicted of further offences in the period between the date of the assaults and the date of sentencing. 28 The principles governing this Court in the determination of appeals brought by the Crown were collected by Wood CJ at CL in R v Wall [2002] NSWCCA 42, and need not be restated. The Crown has identified errors in the approach that the Judge took, but the question remains whether the sentences are manifestly inadequate in that they fall definitely outside the range of sentences for the offence. 29 These offences were aggravated by the circumstance that the respondent was serving a community service order at the time he committed them: R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299. 30 The offence against Joseph Slominski was an objectively serious offence involving an assault with a weapon on a man nearly twice the age of the respondent, thereby causing grievous bodily harm. In my opinion, the determination to suspend the execution of the sentence pursuant to the provisions of s 12 in the circumstances of this case, taking into account that the respondent was the subject of conditional liberty at the time of the offence, produces a result that is outside the range of sound discretion. 31 I consider that the Crown was right to submit, as it did before the Judge, that this offence required the imposition of a term of imprisonment to be served in full time custody. No question of a suspended sentence in relation to the offence against Mr Grooms, which it is accepted was less objectively serious, was available in the event that the respondent was sentenced to a term of full time imprisonment in relation to count 2; s 12(2). 32 Ms Loukas has submitted that notwithstanding a conclusion of manifest inadequacy, this Court should exercise its discretion not to intervene. The respondent has been at liberty subject to the s 12 bonds for a period of almost four months. In determining whether or not to intervene, it is appropriate for this Court to have regard to the measure of double jeopardy that attends a successful Crown appeal; R v Allpass (1993) 72 A Crim R 561. 33 In my opinion, the seriousness of the offences committed while the respondent was the subject of conditional liberty requires the Court to intervene and re-sentence the respondent. I acknowledge the substantial measure of double jeopardy associated with a successful Crown appeal in a case in which the respondent to the appeal has been at liberty on a bond. 34 For this reason, the sentences that I propose involve the extension of a significant degree of leniency. This will be achieved by substituting for the order, suspending the execution of the sentences pursuant to s 12, one directing that each sentence be served by way of periodic detention. The respondent receives the benefit of the four months he has served on the s 12 bond in the determination that the sentence in each case be served by say of periodic detention, and in the structure of them, which includes his Honour's finding of special circumstances. 35 For these reasons the orders that I propose are: Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof, the respondent is sentenced as follows: 1. For the offence charged in count 2 - the offence against Joseph Slominski - a non-parole period of twelve months with a balance of term of eight months. Such sentence to be by way of periodic detention. The respondent is to report to the Metropolitan Periodic Detention Centre at Parramatta not later than 8.30 am on 24 February 2007 to commence serving this sentence. Direct the respondent's release at the expiration of the non-parole period. 2. For the offence charged in count 3 - the offence against David Grooms - a non-parole period of ten months and a balance of term of five months. That sentence is to be served by way of periodic detention. The respondent is to report to the Metropolitan Periodic Detention Centre at Parramatta not later than 8.30 am on 24 February 2007 to commence serving that sentence. 36 McCLELLAN CJ at CL: I agree. 37 HOWIE J: I also agree. 38 McCLELLAN CJ at CL: The orders of the Court will therefore be those as proposed by Bell J.

R v Douglas

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