R v Thornton

Court of Criminal Appeal (NSW)|2015-05-04|Before: Hoeben CJ, Hidden J, Beech-Jones J, Neil J, Jones J

Judgment

HOEBEN CJ at CL: I agree with Beech-Jones J.
HIDDEN J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from the sentences imposed by the District Court upon the applicant for two serious assaults.
On 22 October 2012 the applicant pleaded guilty to an indictment that contained two counts. The first count charged him with an offence under s 33(1)(b) of the Crimes Act 1900 (NSW) namely that on 12 March 2011 he inflicted grievous bodily harm upon a person with intent to do grievous bodily harm. The second count charged him with an offence under s 59 of the Crimes Act 1900 namely that on the same date he committed an assault occasioning actual bodily harm. The first count attracted a maximum penalty of twenty five years imprisonment. The second count attracted a maximum penalty of five years imprisonment.
On 25 October 2013 the sentencing judge published reasons for judgment. Those reasons record that the applicant was sentenced on the first count to a fixed term of one year imprisonment commencing 31 May 2011 and expiring on 30 May 2012 and on the second count to imprisonment for a term of imprisonment of six years and four months commencing 31 May 2012 and expiring 30 September 2018. It is clear from the sentencing judgment that her Honour misunderstood the order in which the counts appeared on the indictment. This was an understandable error given the chronology of the offences. In any event her Honour subsequently published a further judgment correcting this mistake. Nothing turns on this.

The offences

There was placed before the sentencing judge a set of agreed facts. They can be relevantly summarised as follows.
At around 11:35pm on 11 March 2011 the applicant, his co-offender, John Tozer, and some friends attended the "Phriction Night Club" in Penrith. At around 1:00am on 12 March 2011 the applicant and his co-offender, and a group of other males, were seen to be talking to the first of the applicant's victims (the "first victim"). Closed circuit television ("CCTV") footage from within the club shows the offender struck the first victim to the jaw knocking him unconscious. This conduct constituted the assault occasioning actual body harm. There is nothing in the CCTV footage to suggest that this assault was provoked. The first victim was assisted by security staff. As a result of the assault he suffered a headache and the left side of his jaw was swollen for approximately a week after the attack.
The second victim was a friend of the first victim. He heard the commotion surrounding the attack upon his friend and saw his friend lying on the ground. He decided to call the first victim's brother. He went to the foyer of the nightclub. While he was on the phone the applicant walked toward the exit. He noticed the second victim talking on the telephone. CCTV footage recorded the applicant watching him for a short time. It also recorded that the applicant "then moved another patron away from the area". The second victim was unaware of the applicant's presence as he had his back turned. As the second victim turned in the direction of the applicant the applicant punched the second victim in the right side of his face. The phone was knocked out of his hand. As he was falling to the ground the applicant punched the second victim twice in the head. At this point the co-offender joined the applicant and also hit the second victim in the head. The second victim slumped to the ground. The applicant continued to punch him as he sat on the ground with his back against the wall. The second victim covered his head with his hands as the co-offender kicked and punched him. The applicant also kicked the second victim.
At this point security staff and some of the applicant's friends intervened. The applicant and his co-offender then left the club. After the attack the second victim was unconscious. He was taken to the restaurant area of the club. He commenced vomiting, was confused and had a laceration under his right eye. He was taken to hospital. A scan of his face showed a complex fracture to the right side of his face in the region above the right eye. He had fractures to his cheekbone and his eye socket. He underwent surgery which involved the repair and reduction of his fractures and the insertion of titanium plates and mesh into the right side of his face.
The applicant was arrested on 31 May 2011. He has remained in custody since then.

The sentencing judgment

The sentencing judge described the facts of the offences and then addressed the remainder of the sentencing task as follows.
First, her Honour noted the applicant's criminal antecedents. At the time of sentencing he was 39 years of age. His criminal record began in his late teens when he was convicted of malicious damage and assault. As an adult he accumulated convictions for resisting arrest, offensive behaviour, numerous assaults, as well as assault occasioning actual bodily harm, malicious damage and possession of drugs, among other offences. In July 2005 he was convicted of assaulting a police officer in the execution of their duty. He received a sentence of four months imprisonment, suspended on the condition that he enter into a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999. In 2008 he was convicted of a number of assaults, including maliciously inflict grievous body harm. For those offences he served just over eighteen months in custody.
Second, her Honour noted the applicant's subjective circumstances. Her Honour found that the applicant's childhood was "marred by violence" and an incident in which he was run over by his father and sustained a fractured ankle. The sentencing judge noted that his relationship with his parents had "been repaired in more recent times". The applicant struggled at school and has poor literacy skills. He had suffered numerous head injuries over time as a result of violence. The sentencing judge observed that he "appear[ed] to be suffering" from some sort of "abnormal grief reaction" following the death of a nephew. The sentencing judge also noted evidence that there was work available to the applicant as a roof tiler upon his release and that he had expressed a wish to improve his relationship with his son.
Third, the sentencing judge discussed at length the evidence from a psychologist called on behalf of the applicant, Ms Alison Cullen. In view of the complaint in ground 1 of the appeal it is necessary to describe this in more detail. Ms Cullen's evidence was challenged by the Crown, however the sentencing judge accepted it.
The sentencing judge noted that Ms Cullen had diagnosed the applicant with post-traumatic stress disorder and also considered that "at the time he committed these offences … he was also suffering from alcohol dependence". The sentencing judge noted that the applicant had been "alcohol free since his incarceration and therefore the diagnosis of alcohol dependence no longer applies". The sentencing judge described Ms Cullen's ultimate opinion as follows: "In the opinion of the psychologist the offender's marked post-traumatic stress disorder, his preoccupation with avoiding unpredictable physical harm, coupled with his low IQ and his non-verbal abilities result in him acting aggressively, particularly when intoxicated. If upon his release he reverts to alcohol abuse and his symptoms go untreated, he is at risk of re-offending."
The references to the applicant avoiding "unpredictable physical harm" relate to assertions made by the applicant to Ms Cullen that he believed the first victim was about to hit him, and that the second victim was arranging for the first victim's brother to bring guns to the nightclub.
Fourth, the sentencing judge characterised the violence involved in each offence. Her Honour noted that the offender and his co-offender had "callously walked away" from the victims after they had assaulted them. Her Honour described their actions as showing a "callous disregard for the rights of others" and as "cowardly".
Fifth, her Honour addressed the relevance of the suggestion of alcohol abuse to his offending. Her Honour noted that the applicant knew "full well the consequences of abusing alcohol" as he chose to do. Her Honour then noted the opinion of Ms Cullen and concluded that the applicant: "… is aware of mental health issues and he is aware of the impact that alcohol has upon him, yet he chooses to place himself in situations where he drinks to excess and then reacts violently towards others when he perceives he is under threat. That is a factor in my view which reduces any mitigation which would otherwise be given to his mental state."
In discussing general deterrence her Honour stated: "He is certainly not an inappropriate medium for general deterrence. Alcohol fuelled violence is rife, the public should be entitled to attend licensed premises and enjoy a night out without the risk of being punched by extremely intoxicated, violent individuals. Sadly, it is not unheard of that such violence results in the death of innocent victims. Sadly now it is too common an occurrence. A substantial component for general deterrence is required in the sentences to be imposed." (emphasis added)
Sixth, her Honour was not prepared to accept that the applicant was "truly remorseful and contrite".
Seventh, her Honour noted that the pleas of guilty were entered on the date the matter was listed for trial. Her Honour allowed a 10% discount.
Eighth, her Honour found that the applicant was "at risk of re-offending" and that "his prospects for rehabilitation are guarded". Her Honour noted that the applicant had previously expressed an intention to change, but that "he continues to abuse alcohol and he continues to [mete] out violence to others". The latter statement was a reference to evidence before the sentencing judge that the applicant had fought with other inmates in gaol.
Ninth, her Honour declined to make a finding of special circumstances although her Honour varied the minimum ratio between the non-parole period and the additional term for the sentence on count 1 to account for the accumulation of the sentences on both counts.

Ground 1 of the appeal: Deficiency of evidence concerning intoxication

Ground 1 of the appeal contends that there was "a deficiency of evidence upon which the learned sentencing judge could find intoxication as an aggravating feature beyond reasonable [doubt] at the time of the offences committed by the Applicant".
The written submissions in support of this ground clarified that the complaint is that "there was a deficiency of evidence from which to infer that the applicant was intoxicated at the time of the offences".
There is no doubt that Her Honour sentenced the applicant on that basis that he was intoxicated. I have already described that part of the sentencing judgment in which her Honour addressed Ms Cullen's evidence as to the interaction between the applicant's documented history of alcohol abuse and his mental state and referred to the need for any sentence to deter "alcohol fuelled violence" such as that inflicted by "extremely intoxicated, violent individuals" (see [20] to [21]).
This contention now being made on appeal is fundamentally inconsistent with the applicant's case before her Honour. The point that was sought to be made on behalf of the applicant before her Honour was that the applicant's violence was a product of the combination of his mental condition and alcohol abuse, but there were prospects of his violent tendencies diminishing because he was committed to addressing his alcohol problems. It was no doubt for that reason that Ms Cullen's report was tendered. The advantage for the applicant in attempting to address his violent behaviour as if it was the product of excessive alcohol consumption was that, if he was sentenced on the basis that his violent assaults were the considered and premeditated acts of a sober person, then that was likely to lead to an even more gloomy assessment of his prospects of rehabilitation.
Thus the proposition that the applicant was seriously affected by alcohol when he committed the assaults was the premise of the applicant's case on sentence and of her Honour's judgment. It was a premise that rejected the unrealistic possibility that this applicant, with his history of alcohol abuse, was sober when he attended a nightclub at 11:35pm and did not consume any more alcohol prior to committing the assaults some time after 1:00am. It was a premise that was otherwise supported by the evidence.
As is to be expected, Ms Cullen's report addressed the applicant's history of abuse of alcohol in considerable detail. She identified one of the factors associated with his risk of reoffending was whether he resumed his alcohol dependence. In a section of her report entitled "Account", Ms Cullen sets out what the applicant told her about the offences. He relayed to her his distorted belief that the first victim was planning to assault him and the second victim was encouraging someone to bring guns to the nightclub. This section of her report concludes: "Mr Thornton confirmed he had consumed alcohol that night and explained that he typically masks 'the panic attacks through alcohol'. He reiterated the grave fear he constantly carried with him concerning his reported susceptibility to die if physically assaulted again." (emphasis added)
As noted, Ms Cullen was cross examined before the sentencing judge. In her oral evidence she addressed at length the connection between the applicant's alcohol abuse and his anxiety about being hit by others. For example, she was asked: "Q. Well so at least in his mind the consumption of alcohol gives him the ability to overcome his anxiety that he experiences about being hit? A. That can be the case, yes. Q. All right, and that prefaces the whole basis on which Mr Thornton puts it to you is that he needs or he feels the need to hit these people before they themselves hit him? A. That's correct. Q. It's a threat that in some way he perceives that he's going to be struck by someone else? A. Yes which is actually not an uncommon thing in people suffering from post traumatic stress disorder, is this erroneous cognition of hyper vigilance and scanning the environment for potential threats, which coupled with alcohol use is then also affecting his ability to make assessments of risk. … Q. And obviously the more - the larger degree of intoxication the more likely it is that there's going to be some degree of affectation in that regard is that right, if he just had one or two drinks you're not suggesting that that's probably going to - A. That's right, yep."
These answers were provided in a context where Ms Cullen's written report confirmed that the applicant had told her that he had consumed alcohol on 11 and 12 March 2011.
In his written submissions Counsel for the applicant contended that this material was only addressed to "a more general problem comprising part of the applicant's criminal history". This is incorrect. The report of Ms Cullen and her oral evidence was directed to a very specific problem said to have manifested itself on 12 March 2011, namely that the applicant's post-traumatic stress disorder meant that, when he abused alcohol, the applicant erroneously perceived that people intended to hurt him. Ms Cullen tied her opinions to what the applicant told her about what happened on 12 March 2011 including his drinking. The sentencing judge accepted that the applicant was affected by alcohol on the evening of 11 March 2011 and accepted that he suffered from post-traumatic stress disorder, but nevertheless regarded his conduct as a form of alcohol fuelled violence. Her Honour did not accept that he would address his abuse of alcohol in the future. The applicant now complains that her Honour acted on the basis that he was affected by alcohol when he urged that upon her Honour at the sentence hearing.
In my view ground 1 should be rejected.

Grounds 2 and 3: Offences involved a single course of conduct and sentences were manifestly excessive

Grounds 2 and 3 of the appeal can be dealt with together. Ground 2 contends that the sentencing judge erred in imposing sentences that involved "complete accumulation" because even though "both assault charges … relat[e] to two separate victims" they "were in part a single course of violent conduct". Ground 3 complains that the sentences were manifestly excessive.
The essence of ground 2 concerns the sentencing judge's approach to concurrency, accumulation and totality. Her Honour adverted to the totality principle in the following part of the sentencing judgment: "The issue of totality arises. Whilst it may be said that the injuries sustained by the victims was as a result of one course of criminal conduct there are certainly two victims and a gap between the assault upon the first and the assault upon the second. It is appropriate therefore that there be an accumulation of sentences to be imposed to reflect those matters. I am asked to make a finding of special circumstances. Were it not for the accumulation of the sentence I would decline to do so."
This aspect of her Honour's approach is not clear. Her Honour appeared to accept that there was at least some force in the submission that there was "a single course of violent conduct". Her Honour did not expressly state that the totality principle had no application. Nevertheless her Honour not only regarded it as appropriate there be "an accumulation", her Honour imposed sentences that were fully accumulated.
Ordinarily, if the approach stated in Pearce v R [1998] HCA 57; 194 CLR 610 at [45] was being applied, it can be expected that sentences for assaults such as these that were close in time and otherwise connected would warrant some concurrency in the sentences that were imposed. In R v Loveridge [2014] NSWCCA 120 ("Loveridge") this Court addressed "five separate attacks" in the same area on five different victims with "different levels of outcome" for the victims. This was held to justify a "significant level of accumulation" for the various offences (at [275] per Bathurst CJ, Johnson and R.A. Hulme JJ). However a "significant level of accumulation" still contemplates some concurrency and that was reflected in the sentences imposed (Loveridge at [282]).
The fixing of individual sentences prior to a consideration of principles of accumulation, concurrency and totality is not the only method of sentencing in such circumstances. Instead, a sentencing judge can lower each sentence and then aggregate them, although that is not the "preferable course" (Johnson v R [2004] HCA 15; 78 ALJR 616 at [26] per Gummow, Callinan and Heydon JJ; "Johnson"; Mill v R [1988] HCA 70; 166 CLR 59 at p 63). While it is not clear, two matters suggest that was the course taken by the sentencing judge in this case.
The first is that, as noted, her Honour expressly referred to the totality principle and appeared to accept its application.
The second is that, in view of the findings in the sentencing judgment and the maximum penalties for each offence, the individual sentences for the two offences appear relatively lenient. Both of them involve extremely serious and unprovoked attacks. The attack on the second victim was particularly vicious. The applicant has a poor criminal record which includes a number of crimes of violence. There was no finding of remorse in his favour. Not only were his prospects of rehabilitation considered "guarded", there was an appreciable risk of his reoffending, especially given his tendency to abuse alcohol.
It follows that I would reject ground 2. Her Honour took into account the connection between the two offences in imposing the individual offences in a manner consistent with Johnson at [26]. It also follows that ground 3 should be rejected.
For the sake of completeness I note that, had I upheld ground 2, I would not have intervened as I consider that no lesser sentence for each offence and overall is warranted in law (Criminal Appeal Act 1912; ss 6(3)).
Accordingly, the orders I propose are: 1. The applicant be granted an extension of time in which to apply for leave to appeal. 2. Leave to appeal be granted. 3. The appeal be dismissed.

Amendments 18 May 2015 - Appearances corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2015

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