Ground 3
54It is convenient to commence a consideration of the appeal with the issue raised by ground 3.
55The Crown appeal on this ground was on the basis that Finnane DCJ erred in making a factual finding that the respondent, Mr Stunden, was provoked.
56Since the Crown challenges this factual finding, in order to succeed on such a challenge, the Crown must show that the sentencing judge was in error in entertaining a reasonable doubt as to the version of the facts contended for by the Crown: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110 at [31] per Basten JA (Barr and Buddin JJ agreeing).
57The issue of provocation was a contested one on the sentencing hearing. At page 9 of his remarks on sentence, Finnane DCJ, in dealing with the issue of provocation and its relevance, said this:
"In my opinion, this is an offence which is less than a mid-range offence, although the consequences were extremely grave. It is less than a mid-range offence, I think, because no weapons were used and, as I would see it, the offender was called to the place by the victim."
58In further describing the circumstances that fell within the description of provocation, the sentencing judge said this:
"He did not lay in wait for the victim. He did not know to go there except that the victim called him to go there. It was when the victim came and somewhat arrogantly attempted to hit him with a bike, that in my opinion he lost control. ... His was a sudden and violent response, no doubt to some extent provoked by days of taunting. It was an unnecessary and absurd response, but it was sudden, it was violent, and it stopped."
59The conclusions which the sentencing judge there expressed relate to some earlier findings in his judgment. At page 2 of his remarks on sentence, his Honour said:
"The next point of contention is this. Did [RJ] arrange to meet the offender by ringing him up, boasting that he was having sex with his girlfriend, and telling him that he would be at this park, or did the offender himself, by some other process, come to know that [RJ] would be at this point in this park on this day and go there with the purpose of meeting him ... I consider what happened was that [RJ] or perhaps someone on his behalf, rang the offender for the specific purpose of boasting to him that [RJ] was having sex with Mr Stunden's girlfriend. Anybody doing such a thing would have to be a person who was arrogant and someone who was wanting a confrontation. I consider that [RJ] was arrogant and was someone who wanted a confrontation. ...
When he received this boastful phone call, the offender became very angry ..."
60It can be seen that his Honour's conclusion of provocation depends upon a number of factual findings. They were:
(a) that in the days leading up to the offence, because of either a number of phone calls or other communications, which amounted to " ... days of taunting ... ", Mr Stunden was entitled to have the view that the victim RJ was having a relationship with his former girlfriend and was wanting to boast to him about that fact;
(b) on the day of the offence, Mr Stunden received a telephone call as a result of which he attended at the park; and
(c) the confrontation occurred when the victim RJ dismounted from his bicycle and in some way thrust it towards Mr Stunden, causing Mr Stunden to "lose control".
61It is appropriate to note an issue of importance which relates to provocation. The provocation here under discussion is that described as a mitigating factor in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act . The terms of that section are " the offender was provoked by the victim ". Unless conduct which fits within these terms is found by the Court, then Mr Stunden is not entitled to the benefit of this provision.
62Against the background of this statutory provision it is convenient to assess the finding on the first factual allegation which Finnane DCJ was satisfied amounted to provocation. That is, the assertion that in the days leading up to the assault there had been provocative conduct which affected Mr Stunden.
63The statement of facts which was tendered contained no material which dealt with the events leading up to the day of the offence.
64The Crown then relied upon these facts in support of this ground:
(a) RJ denied in the course of his evidence-in-chief that he had made any attempts to communicate with Mr Stunden in the days leading up to the attack;
(b) RJ was not cross-examined in any way which challenged his denials about his conduct in the days leading up to the attack;
(c) Mr Stunden gave no oral evidence about any conduct in the days leading up to the attack.
65The oral evidence before his Honour did not support the existence of phone calls or like communications in the days leading up to the day of the assault. When cross-examined Mr Stunden denied receiving any phone calls prior to the day of the assault. In re-examination, Mr Stunden reaffirmed his evidence that he received only one "harassing" phone call which was on the day of, but before, the assault.
66The evidence upon which it seems his Honour relied, in addition to such observations of demeanour as he made of those who gave evidence, comes from two sources. The first is a letter of a psychologist, Mr Joel Curtis, of Life Resolutions, which seems to be dated 1 June 2010, in which Mr Curtis records the following:
"Mr Stunden reported that he was being harassed on the phone by his ex-girlfriend's new boyfriend. He stated he was becoming significantly upset and distressed by these phone calls. He reported that he lost control of his emotions and confronted the person on the phone face to face."
67The second source is from the pre-sentence report of 10 June 2010, prepared by the Probation & Parole Service. That report included the following:
"The offender reported that his offending behaviour was a reaction to what he and his mother described as being significant provocation by the victim by way of text phone messages and images regarding the offender's former long term girlfriend, and her relationship with the victim. The offender also alleges that contained within such messages was a challenge for him to partake in a physical fight with the victim.
The offender's mother stated that the above taunts by way of messages and images were designed to hurt and humiliate the offender, and that they had the desired effect."
68Neither of the parties applied to the Court below for, and the Court did not make, a direction that the law of evidence applied to the sentencing proceedings. Accordingly, the provisions of the Evidence Act 1995 did not apply: s 4(2)(a) Evidence Act.
69Although the accounts which I have set out in paragraphs 66 and 67 are hearsay, the judge was nevertheless entitled to have regard to them. However, the question of the weight to be allocated to these accounts, was a matter which required careful attention.
70In relying upon that evidence, his Honour needed to have regard to a number of matters:
(a) when he gave evidence, Mr Stunden was not asked to, nor did he at any time, verify the accuracy of the history which he gave to either of the authors of the reports;
(b) whilst the history contained in the report of Mr Curtis attributes Mr Stunden's actions to more than one phone call occurring, Mr Stunden specifically rejected this version of the facts in cross-examination asserting that there was only one phone call; and
(c) the history recorded in the Probation and Parole Report, seems to be a combined history taken from both Mr Stunden and his mother. It contains interpretation and opinion as well as an account of the facts, the detail of which Mr Stunden did not recount when giving evidence.
71Each of the matters to which I have just referred were important matters to be considered by his Honour in deciding what the facts were which underlay Mr Stunden's offending. His Honour's analysis does not seem to have expressly considered these matters.
72His Honour's conclusion, that one feature of the facts and circumstances which he found to have been proved, to which he was entitled to have regard, as constituting provocation, and hence a mitigating factor (s 21A(3)(c), Crimes (Sentencing Procedure) Act ), was the events on the days leading up to (but not including the day of) the assault, was, as I have indicated, challenged by the Crown.
73I have concluded that the challenge to the finding of these events has been made good for these reasons:
(a) his Honour's findings and reasons do not make it clear what the evidence was that his Honour relied upon, particularly given that Mr Stunden's own evidence before his Honour denied the existence of these events;
(b) the only evidence which would have been a sufficient basis for his Honour's finding was the history given to the Probation and Parole Service, which having regard to its form and content was not sufficiently probative to outweigh the direct sworn evidence to the contrary which was before his Honour; and
(c) it was not open to his Honour to find that the factual evidence, even if accepted, amounted to provocation within the meaning of that term in s 21A(3)(c) Crimes (Sentencing Procedure) Act , because it was not claimed or found by his Honour that the events over those days was conduct by the victim RJ as required by the legislation. His Honour's findings did not, as they needed to, specify who actually undertook the conduct.
74The Crown also challenged the other two findings of fact relating to provocation to which I have referred in para 60 above.
75There was evidence to support the finding that Mr Stunden received a telephone call which took him to the park where he met RJ. Mr Stunden himself gave that evidence and said that the phone call included a person who was likely to be RJ speaking to him. As well, the phone call was the most compelling reason to explain how Mr Stunden came to be at the carpark at the oval adjacent to Jannali High School at a time when RJ was also there. There was no other evidence which could have explained how the meeting came about. His Honour's finding on this issue was not only open to him but, in my opinion, was correct.
76Since this evidence explained how Mr Stunden attended at the location where the fight occurred, his Honour was entitled to have regard to it as one of the relevant facts when assessing both the objective seriousness of the crime and the subjective features of Mr Stunden's criminality.
77The final factual finding which is challenged is that concerning the way in which the fight started. The Crown submitted that the sentencing judge ought to have rejected the account given by Mr Stunden in evidence, which was that RJ had started the encounter, because it was inconsistent with another account given by Mr Stunden to Dr Knight at the St George Hospital within a few days of the event, and also because the account was inconsistent with the evidence given by RJ to the sentencing judge.
78The Crown submitted to this Court that Mr Stunden was an unreliable witness whose evidence had not been wholly accepted by his Honour, particularly on the issue of whether Mr Stunden had kicked the victim RJ, as well as punching him. As well, the Crown submitted that Mr Stunden's evidence was likely to be unreliable because, as he himself had conceded, he had lost his temper and his self-control when he encountered RJ, and hence it was submitted, he was unlikely to clearly remember what occurred.
79All of these matters were put in argument before the sentencing judge. They were all matters to which he was entitled to give weight. What weight he gave them was a matter for him. I am not persuaded that the finding about the initiation of the fight was one which was not open to his Honour. I acknowledge the persuasive force of the criticisms made by the Crown of this finding of fact, however, it is not for this Court to simply substitute a different finding of fact which it prefers. To do so would not be consistent with the principles discussed in Lombard .
80In the result, I am persuaded that the Crown's challenge to one of the factual findings has been made good, but not to the other findings. To the extent that this particular conclusion of fact grounded the finding of provocation, the Crown has established error.
81However, the remaining two factual findings, namely:
(a) that Mr Stunden was summoned to the oval by the victim RJ; and
(b) that the fight was initiated by RJ thrusting his bike at Mr Stunden who thereby lost control and hit RJ;
have not been demonstrated to be in error and were, as I understand the evidence, correct.
82But the question relevant to this ground of appeal is whether these two facts were adequate, in the absence of the earlier finding of fact which was, I have found, erroneous, to explain and ground a finding of provocation of Mr Stunden, as that term is used in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act .
83The factual finding that the fight between RJ and Mr Stunden was initiated by RJ when he thrust his bike at Mr Stunden who thereby lost control and hit RJ was sufficient for a finding of provocation at least as the fight initially unfolded. What occurred was that Mr Stunden, as the sentencing judge found, did suddenly lose control and responded initially with a punch which the sentencing judge regarded as a proportionate response. The phone call summonsing Mr Stunden to Jannali Oval was the preliminary step to the outbreak of the fight, and in this case, is appropriately to be viewed in that light.
84However, the sentencing judge found that the fight involved not just the throwing of punches by Mr Stunden, but also the kicking of RJ, the victim, " ... a number of times ...". The evidence did not enable his Honour to be any more precise in finding how many times the victim was kicked. His Honour seems to have regarded this conduct as not being a proportionate response to what occurred, because he described what happened as " ... an enormous beating ..." which he also described as " ... an unnecessary and absurd response ...".
85Accordingly, a finding of provocation by the sentencing judge was supported by the facts and correct. But, that finding goes only to the events leading immediately up to, and the commencement of, the fight and not to the entirety of the conduct to which his Honour seemingly had regard.
86Whilst this ground of appeal succeeds in part, the question of the weight to be accorded to the more limited finding of provocation than the one made by his Honour will be considered later in this judgment.