R v ELPHICK [2010] NSWCCA 112 | Case summary

1 ALLSOP P: I agree with Grove J. 2 GROVE J On 5 August 2009 the respondent appeared before Conlon DCJ (the Judge) at Wollongong District Court for sentence following his plea of guilty in the Local Court to a charge of affray. There was at that time placed before his Honour a certificate pursuant to s 166 of the Criminal Procedure Act 1986 specifying that the respondent "has been charged with backup offences" described as respectively, assault occasioning actual bodily harm and common assault. The copy certificate with the appeal papers is unsigned and bears date 6 May 2009. The offence of assault occasioning actual bodily harm does not fit the description of a backup offence to affray as provided by s 165 of that Act but it does fit the definition of a related offence. 3 For each of the offence of affray and the related offence of assault occasioning actual bodily harm (the current offences) the Judge sentenced the respondent to imprisonment consisting of a non-parole period of 18 months to date from 11 February 2009 and to expire on 10 August 2010 and an additional (balance) term of 6 months to expire on 10 February 2011. The Judge dismissed the backup charge of common assault. 4 To appreciate the practical effect of these sentences, it is necessary to examine some other offences and penalties pertaining to the respondent. The current offences were committed on 11 February 2009. On 25 June 2008 the respondent had been sentenced to imprisonment consisting of a non-parole period of 12 months to date from 12 December 2007 and expire on 11 December 2008 with a balance term of 12 months commencing on 12 December 2008 for aggravated breaking and entering and committing a serious indictable offence in company. He was on parole therefore at the time of the current offences. 5 On 26 February 2009 the State Parole Authority revoked the parole order and the respondent was required to serve the balance of sentence (11 months 11 days) commencing on 12 February 2009 and expiring on 22 January 2010. Hence the sentences for the current offences effectively extended the minimum term of actual custody by a little over six months. 6 However, on the day that the Judge pronounced sentence the respondent also later appeared at Wollongong Local Court to be sentenced for unrelated offences of common assault and affray which we were informed had been committed in January 2009, that is in the month preceding the commission of the current offences. For assault the respondent was sentenced to a fixed term of 6 months imprisonment to date from 11 August 2010 and expire on 10 February 2011 and for affray to imprisonment consisting of a non-parole period of 6 months to be served concurrently between those dates and a balance term of 12 months commencing on 11 February 2011. Obviously, the sentences were designed to cumulate upon those imposed earlier in the day in the District Court. 7 Before the Court is an appeal by the Crown against sentence upon the current offences pursuant to s 5D of the Criminal Appeal Act 1912, but the issues raised require a recounting of some history regarding the offences and some of the curial procedures in respect of them. 8 At about 3 pm on 11 February 2009 Mr Ian Chalmers commenced work driving a bus for Premier Illawarra Bus Services. At 10.25 pm he was about to commence his last journey, the scheduled route being from Wollongong Railway Station to Shellharbour Square. At the station the respondent attempted to board the bus and Mr Chalmers told him that he would have to finish eating a sausage roll which he was consuming but that he, Mr Chalmers, would wait for him. The respondent threw the item away and boarded the bus, said that he wanted to go to Warilla and paid his fare. The respondent was intoxicated. 9 The bus reached Warilla. The respondent had fallen asleep and Mr Chalmers went to the back of the bus and awakened him and then returned to his driver's seat. The respondent ran to the front of the bus and Mr Chalmers offered to take him to Shellharbour Square. The respondent sat down. 10 Shortly thereafter upon arrival at a stop the only other passenger alighted from the bus. Then the respondent approached Mr Chalmers and there was an exchange in which the respondent demanded to be taken home and Mr Chalmers declined, pointing out that his obligation was to follow the route and transport any intending passengers. 11 A statement of facts tendered in the District Court described the ensuing events but like the Judge, this Court has seen the product of a CCTV, which was installed within the bus. The language in the facts sheet does not and could not adequately convey the unrelenting savagery of the respondent's attack. It is true that the respondent was caused to fall to the floor of the bus when Mr Chalmers pushed him away but this pales into insignificance when what follows is observed as captured by the camera. 12 To a large extent using metal bars in the bus to anchor his hands, the respondent's swung his legs and feet in a simian-like action kicking Mr Chalmers. He struck him in this way on multiple occasions. He also grasped Mr Chalmers using his legs in the fashion of a wrestler's scissor hold. From time to time, the respondent briefly desisted only to renew what, to observation, presented as frenzied aggression. The kicking movements gave no indication of restraint by the respondent and this was confirmed by the reactive movements of Mr Chalmers' body. 13 A consequence was an erratic path of the bus as it proceeded along the road. Motorists pursued the bus in an attempt to render assistance. It eventually mounted a kerb and stopped. The respondent was detained by members of the public until the police arrived. They arrested him. 14 Mr Chalmers was taken to hospital by ambulance. He had been seen to be shaking uncontrollably and bleeding from his left arm and right knee. He was treated for bruising, abrasions and superficial skin tears. Shoe prints were observed on his back. 15 The respondent was charged with assault occasioning actual bodily harm and assault. He appeared before the Local Court on the following day (12 February 2009). The charges were stood over until 17 February for mention and bail was refused. On 17 February the respondent pleaded guilty to those charges and police prosecutors tendered facts in relation to those offences. 16 The offence of assault occasioning actual bodily harm carries a prescribed maximum penalty of 5 years imprisonment (Crimes Act 1900 s 59(1)). It is however a Table 2 offence under s 260 (1) of the Criminal Procedure Act and is to be tried in the Local Court unless an election is made for trial on indictment. The Local Court is jurisdictionally limited (so far as is presently relevant) to imposing a maximum penalty of imprisonment for 2 years. 17 In the case of pleas of guilty the presentation of the facts relied upon by the prosecution to prove the offences removed the capacity to elect trial on indictment and, hence, exposure to the statutorily prescribed maximum penalty: Criminal Procedure Act s 263 (3)(b). 18 This Court has been left to infer that the Director of Public Prosecutions may have wished to, or at least contemplated, electing to have the charge of assault occasioning actual bodily harm tried on indictment but as a result of the events on 17 February 2009 at the Local Court, he could not do so. 19 On 8 April 2009 a Court Attendance Notice was issued out of Wollongong Local Court charging the respondent with affray contrary to s 93C (1) of the Crimes Act. This is a Table 1 offence pursuant to s 260(1) of the Criminal Procedure Act and also is to be dealt with in the Local Court unless an election is made. We were informed that an election was made on 9 April 2009. 20 It is plain that the prosecution relies on the same events to found all the charges. The detail of the offences endorsed on each Court Attendance Notice identically asserts the commission of offences of assault occasioning actual bodily harm, assault and affray "between 11.20 pm and 11.30 pm on 11/02/2009 at Shellharbour" assaulting or using unlawful violence towards Ian Chalmers. 21 It is noted that each of the three Court Attendance Notices is identically endorsed as being created by a police officer at "2.03 am on 12/02/09", but the listing of the affray charge is endorsed as 8/4/09 at 12.00 pm, the other two offences at 9.30 am on 12 February 2009. It does not seem likely that the Court Attendance Notice in respect of the affray can be accurately described as "created" as stated, but nothing now turns on this. 22 A Notice of Appeal dated 14 August 2009 stated that the Director of Public Prosecutions desired to appeal under s 5D of the Criminal Appeal Act against a sentence pronounced by the Judge for the offence of affray. Dated 27 October 2009 a further Notice of Appeal expressed a desire to appeal against sentence pronounced by the Judge on a charge of affray and a charge of assault occasioning actual bodily harm. Neither of these notices expressed any grounds of appeal. 23 A further Notice of Appeal dated 25 March 2010 expressed these grounds: "1. The learned sentencing judge erred in point of principle by imposing sentences which were, and which his Honour recognised to be, manifestly inadequate. 2. The misapplication of the Criminal Procedure Act 1986 (NSW). 3. The misapplication of sentencing principle in Pearce (1998) 194 CLR 610. 4. Erroneous constraint upon his sentencing discretion in respect of the sentence for affray." 24 All of these grounds focus upon what the Judge perceived and described as a sentencing dilemma. In summary, he observed that for the offence of assault occasioning actual bodily harm he could not impose a penalty greater than 2 years imprisonment. This was correct: s 168 (3) Criminal Procedure Act. He then observed that, an election having been made, the offence of affray "theoretically" carried a maximum penalty of imprisonment for 10 years. He did not pause to elaborate upon what he intended to convey by the expression "theoretically" but he proceeded to remark that both of the offences of affray and assault occasioning actual bodily harm arose out of the same set of facts, although the elements were not identical. In that context he referred to the need to avoid double punishment and cited the joint judgment in Pearce v The Queen (1998) 194 CLR 610 at 623 (McHugh, Hayne and Callinan JJ): "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 25 The Judge then articulated what he perceived as a problem in applying that authority to this case. He said: "In the present case, the offender's assault (unlawful violence) of the victim is an element of each offence under s 59 and s 93C (1). Therein lies the difficulty presented to the court in this sentencing exercise. In the course of submissions the Crown had initially argued that the offence of assault occasioning actual bodily harm was merely a backup charge. If that was so, there would be no problem. The court could sentence in respect of the charge of affray and dismiss the assault occasioning actual bodily harm on the s 166 certificate. However, s 165 of the Criminal Procedure Act makes it clear that the charge of assault occasioning actual bodily harm is not a backup offence but a related offence. That section provides that a related offence means an offence that arises from substantially the same circumstances as those from which the indictable offence has arisen. It does not possess all of the same elements of the indictable offence. Accordingly, it follows that I must pass sentence in respect of the assault occasioning actual bodily harm. If I do that and then pass to consider the penalty in respect of the charge of affray, I cannot punish the offence for the common element, that is the unlawful violence. In my view, it is that element that has resulted in my assessment of the offender's conduct as being at the very upper end of objective seriousness, if not the worst case category (in respect of the charge of assault occasioning actual bodily harm). If I was to do it in the reverse order, that is sentence for the elements of affray and then pass onto the assault occasioning actual bodily harm, I would be limited to having regard only to the injuries sustained by the victim, that is the actual bodily harm and ignoring the assault itself (i.e. unlawful violence) because that would have been taken into account in respect of the charge of affray. In my view, that approach would be a nonsense, and utilised simply as a device to get around the failure to elect." 26 Those observations reveal a misapplication of the cited authority. The vice to be avoided is "punishing an offender twice" but this does not require ignoring elements which are common to overlapping offences. 27 In the present case it would have been apt to consider, independently, the facts and circumstances relevant to sentence for the indicted offence of affray and proceed to sentence accordingly. No inhibition on so doing is provided by the existence of the offence on the s 166 certificate. 28 The strictures in the extract from Pearce are focussed upon the avoidance of double punishment not on the structure of sentence imposition. The fact that the mechanics of dealing with the offence of assault occasioning actual bodily harm, in the absence of election, placed a limit on the term for that offence does not operate to inhibit an appropriate sentence being imposed for the offence of affray. 29 If the offence of affray is first dealt with, then when turning to deal with the offence of assault occasioning actual bodily harm, any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken. 30 In my view, the Judge's perception that the statutory constraint which limited sentence for assault occasioning actual bodily harm to imprisonment for 2 years restrained him from imposing a greater sentence than that for the offence of affray was incorrect and it was a material error to apply that perception when pronouncing sentence. 31 In the light of that error, the grounds of appeal should be sustained. 32 It was submitted by the respondent that, outside of the operational scope of s 68A of the Crimes (Appeal and Review) Act 2001, this Court retained a discretion to dismiss a Crown appeal. The existence of such discretion can be accepted. As I understood the submissions, the exercise was sought on two main grounds, treated either in isolation or in combination. 33 The first was the delay in expressing grounds of appeal, the chronology of which has been mentioned above. The Crown, when contemplating appeal against sentence, is required by longstanding authority to notify the offender promptly of its intention to appeal. No delay in such notification to formulate precise grounds of appeal should occur. Consistent with this, it is not required that the grounds be identified when notice is first filed, but, of course, they must be identified as some stage: R v JW [2010] NSWCCA 49 pars 33 and 35. 34 This respondent must have been aware at the time of receipt of the first notice of appeal that the Crown was intent upon challenging the sentence which had been imposed upon him and I am unpersuaded that the delay in formulating the grounds gives rise to the exercise of discretion to dismiss the appeal. 35 The second factor related to the statistical pattern of sentencing for the offence of affray. Should it not provoke discretionary dismissal of the appeal it would remain as a relevant issue in any assessment of resentence. 36 The maximum penalty for affray was increased from 5 to 10 years imprisonment with effect from 15 December 2005. Mr Arnott SC for the Crown and Mr Stratton SC for the respondent agreed that no case of sentence for affray could be located as coming before this Court after the increase. Mr Stratton pointed however to the information concerning sentences (in courts higher than the Local Court) for offences committed after 15 December 2005 collected by the Judicial Commission. The collection revealed thirty four cases in which only four offenders received full time custodial sentences. One offender was sentenced to imprisonment for 3 years, two to imprisonment for 2 years 6 months and one to imprisonment for 1 year. 37 Those statistics, of course, convey no detail of the circumstances of offending. The mere fact that the sentence received by the respondent is as high as that received by anyone with three exceptions, does not, in my view, attract the exercise of discretion to dismiss the appeal. That conclusion is fortified by a consideration of the circumstances relevant to the respondent and his offending. 38 I would allow the appeal in respect of the sentence of affray and proceed to resentence. 39 The respondent is able to call upon only little by way of subjective matters to attract leniency. As already mentioned, he was on parole at the time of the current offences. At age twenty he had a significant record of prior offending and had already served a term of imprisonment for an offence of violence. 40 However, he had worked for about a year after leaving school and not thereafter until 12 December 2008 when he obtained employment immediately upon release from prison. His employer, Mr Wheeler, contracted for maintenance work for retail stores and he spoke well of the respondent as a punctual, honest and hardworking employee. The employer knew of the respondent's recent release from prison. 41 The respondent had been a consumer of illicit drugs in his early teens. He and a former partner had lost a child to sudden infant death syndrome. He has a daughter aged about three. The Judge referred to the content of a psychological report and it is unnecessary to repeat his observations. 42 The objective seriousness of the offence of affray was extremely high. The Judge commented that the words used in the facts sheet failed to accurately describe the savagery of the attack and, like his Honour, I find it difficult to convey the appalling conduct viewed on the CCTV film by the use of words. 43 Of course, in dealing with affray the unlawful violence is to be distinguished from causative harm which is an element of the different offence to be dealt with pursuant to the s 166 certificate. A distinct element in the offence of affray is the capacity of the violence to engender fear in a bystander, there being no requirement of the actual presence of such a person (s 93C (4) Crimes Act). It is germane to consider the level of the violence which I have described as extremely high but bear in mind that it is not an element of that offence that harm or harm of any particular scale or quality be caused to a victim. This distinction from the related offence on the s 166 Certificate is self evident. 44 Giving full weight to those subjective features upon which the respondent can call and to the statistical sentencing pattern, I consider the objective seriousness of the offence of affray leads to an appropriate assessment of sentence of imprisonment for 4 years. The promptness of the plea of guilty by the respondent was undeniable. The utilitarian value of the plea, being made at the earliest possible opportunity, should attract the top of the range of discount, namely 25 percent, as postulated in the guideline case of R v Thomson & anor (2000) 49 NSWLR 383 at 418. I would therefore assess a head sentence of imprisonment for 3 years. 45 I would not find special circumstances in setting the non-parole period. I would not intervene in respect of the extant sentence of assault occasioning actual bodily harm but an order permitting concurrent service whereby the entirety of that sentence will be subsumed within the non-parole period of the sentence for affray will, as contemplated by Pearce, avoid any double punishment of the respondent. 46 The variety of impositions to be served by the respondent have been earlier detailed. The division of the term of 3 years as above assessed would result in a non-parole period of 2 years 3 months. If the commencement date specified by the Judge for the sentences imposed by him were maintained, a non-parole period of 2 years 3 months would involve a minimum custody referrable exclusively to the offence of affray of approximately 11 months. This is because from 12 February 2009 to 22 January 2010 the respondent has been serving the balance of his sentence for the aggravated breaking and entering and from 11 August 2010 to 10 February 2011 will be serving the sentences imposed at Wollongong Local Court on 5 August 2009. 47 As the respondent was serving a sentence of imprisonment when he appeared for sentence in the District Court, it was open to direction to specify commencement of sentence on a later day provided that day was within the currency of the sentence already being served: Crimes (Sentencing Procedure) Act s 47 (2) (b). 48 In my view an appropriate sentence for the offence of affray, as above assessed, should in the circumstances be directed to commence on 11 August 2009. No question of double punishment will arise if the sentence and orders in respect of the offence of assault occasioning actual bodily harm are undisturbed as the term will be subsumed within the custody for other offences. 49 As the proposed term is 3 years, a parole order is required to be made by the Court: Sentencing Procedure Act s 50. 50 I am conscious of the concurrent effect also of the sentence imposed on the respondent in the Local Court on 5 August 2009 but I do not consider that it would be appropriate that the sentence for affray be extended to deprive the respondent of the incidental advantage which will accrue from that concurrency. 51 I propose the following orders:

R v ELPHICK

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