REGINA v Brian John ACHURCH

LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0130 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL DOWD J BELL J SMART AJ

9 June 2004 REGINA v Brian John ACHURCH Judgment 1 DOWD J: The Court is in a position to give judgment in this matter and Bell J will give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by her Honour English DCJ (the Judge) in the Taree District Court on 28 August 2003. 3 On 20 August 2003 the applicant was arraigned on an indictment charging him with a single count of assault occasioning actual bodily harm upon David Hepworth at Taree on 18 January 2003. The applicant entered a plea of guilty. The Crown Prosecutor informed the Judge that the applicant had been committed for trial on 22 April 2003 on a different charge. Subsequently the Crown had determined to indict him upon the count to which I have referred. The matter proceeded upon an acceptance that the applicant had pleaded guilty at the first opportunity. 4 The applicant was on bail throughout the period prior to his sentencing on 28 August 2003. On that date the Judge sentenced him to a term of two years' imprisonment to date from the date of imposition and to expire on 27 August 2005. She declined to find special circumstances and imposed a non-parole period of 18 months. 5 The facts on which the Judge proceeded were as set out in the statement of facts, Ex A, tendered at the sentence hearing: "On 5 January 2003, David Hepworth and Karen Goodridge commenced to live together in a caravan at the Taree Caravan Park. At this time, Brian Achurch (the offender) was living in another caravan on a neighbouring caravan site. On 6 January 2003, while Hepworth and Goodridge were walking to the toilet block in the caravan park, the offender said to Hepworth, 'You're a rock spider, you better watch your back'. The offender denies making such a remark. On Saturday 17 January 2003, Hepworth and Goodridge went for a walk. As they were walking, the offender approached them and said to Hepworth, 'You're a fucking rock spider and you're going to pay for what you're doing'. The offender denies making such a remark. Hepworth and Goodridge walked away and then called the police and reported what had happened. The police attended the caravan park and Hepworth and Goodridge again reported what had happened. At about 2:00 am, on Sunday 18 January 2003, David Hepworth and Karen Goodridge were asleep in their bed, in their caravan. At this time, the offender began to bang on the caravan door. The offender then entered the caravan and stood next to the bed. The offender was holding a bottle of beer in his hand. The offender then said, 'I am going to fuckin' kill you'. The offender denies making such a remark. As Hepworth got out of the bed, the offender and Hepworth began to struggle. During the struggle, the offender moved his head forward in the direction of Hepworth's forehead as a result of which their heads came into contact, causing a laceration above Hepworth's left eyebrow. The offender then tipped beer from the bottle onto Hepworth and Goodridge. Goodridge kicked out and struck the offender in the area of his groin. The offender stumbled backwards. Hepworth then said, 'where's the phone because we will call the coppers'. The offender then left the caravan and Hepworth called the police." 6 Later that morning it appears that the applicant was spoken to by police at his caravan, arrested and conveyed to the Taree Police Station. The arresting police formed the view that he was moderately to well affected by alcohol. The victim of the assault did not require any medical attention. 7 The applicant has a lengthy criminal history commencing when he was aged 17 years. As an adult he has been dealt with before various Local Courts on 19 occasions for offences including malicious damage, breach of apprehended domestic violence orders, attempted theft from a motor vehicle, driving offences and offences consistent with his admitted history of drug and alcohol abuse. 8 On 19 January 2000 he was convicted of an offence of common assault before the Forster Local Court. He was placed on a recognizance pursuant to s 558 of the Crimes Act 1900 (as it then stood) for a period of 12 months. It would appear that he completed the recognizance satisfactorily. 9 On 9 May 2001 the applicant was again before the Forster Local Court. On this occasion he was dealt with for offences including assault occasioning actual bodily harm. He was placed on a community service order requiring that he undertake 100 hours of community service work. He completed the order satisfactorily, although the Probation and Parole Service report commented that his performance of the order had been not without difficulty. 10 On 26 June 2001 the applicant was dealt with by the Forster Local Court for the offences of assaulting a police officer in the execution of his duty, resisting an officer of police and using offensive language in a public place. He was sentenced to imprisonment for six months in relation to the assault upon the police officer. The sentence was suspended upon the applicant entering into a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999. Section 9 bonds were imposed in relation to the offences of resisting police and using offensive language. 11 The Crown Prosecutor draws attention to the circumstance that the applicant appears to have breached the terms of those bonds by (i) an offence of entering prescribed premises without lawful excuse, (two months prior to the expiration of the bond) and (ii) an offence of malicious damage (a fortnight prior to the expiration of the bonds). It does not appear that he was breached in relation to those matters. 12 The applicant gave no evidence before the sentencing judge. A pre-sentence report set out such background material as was before the Judge. This included that he had experienced a disrupted childhood, his parents had been deemed unfit to care for him as a result of their alcoholism, and that he had been raised in foster homes. He lacked familial support and had a history of involvement in relationships that were not enduring. 13 At the date of the preparation of the pre-sentence report the applicant had recently commenced a de facto relationship with a woman who was the mother of two children. She reported that his lifestyle had become progressively more stable since they had commenced their relationship, a little more than two months prior to the date of the report. At the date of sentence, the applicant was the recipient of a Centrelink disability benefit. He had a history of employment prior to sustaining a back injury. 14 The applicant was described as having a long history of alcohol and other drug abuse. At the date of the pre-sentence report he was on a methadone program and had been compliant with that program since July of the previous year. 15 The author of the pre-sentence report recorded that the applicant objected to numerous of the details set out in the police statement of facts. He had given an account of having been in a dispute with the victim over an unpaid debt and of "other suspicions he had about dubious activities that the victim was involved in". The applicant denied head butting the victim, maintaining that there had been a scuffle during which time the victim fell on top of him and thereby sustained his head injury. The applicant conceded in his discussion with the probation officer that he had been affected by alcohol and methadone at the time of the offence. 16 The applicant was assessed as suitable for a community service order, but as unsuitable for a periodic detention order. He had declined to be assessed for the latter because of the financial and practical difficulties attending the Tomago Periodic Detention Centre. 17 At the sentence hearing the Crown Prosecutor submitted that this was an offence that it was open to the Judge to assess as being towards the bottom of the range for such offences. 18 In her reasons the Judge outlined the facts consistent with the statement of facts. She noted that the applicant had denied certain of the statements made by the victim. She observed: "The offender did not give evidence before me. He disputes the circumstances giving rise to the assault but I am told does accept full responsibility for the assault itself. I am told from the bar table that the circumstances giving rise to the assault related to money. That is not an issue I am able to resolve, when neither the offender nor the Crown witnesses gave evidence. What I am able to resolve is that the offender, an obviously fit young man, entered a caravan in the early hours of the morning intending to have words with his victim who had been asleep and woke to find the offender standing beside his bed in an intoxicated state." (ROS 3) 19 Her Honour went on to note that the applicant, through his counsel, and contrary to the version he had given to the Probation and Parole officer, admitted to head butting the victim. She commented on his conduct thereafter in pouring beer over both the victim and Ms Goodridge. She concluded both the victim and Ms Goodridge would have held grave fears for their safety. She found the offence to be an objectively serious one. 20 The Judge commented that in the past the applicant had been treated leniently on a number of occasions. He had participated in various offender management programs at the instigation of the Probation and Parole Service. These programs were directed to anger management and alcohol and drug abuse. Her Honour observed that the programs did not appear to have been successful in addressing either the applicant's alcohol addiction or his lack of self-control. 21 The Judge rejected the submission that the applicant was remorseful and contrite. In this respect she noted that he had given no evidence before her and that he had attempted to minimise his role in the offence. 22 Her Honour allowed a 20% discount in recognition of the utilitarian value of his plea of guilty. 23 The Judge noted that she had given consideration to the various sentencing options that were available. She had concluded that there was little reason for confidence that further programs aimed at rehabilitation would assist the offender. In those circumstances she determined that the appropriate sentence was one of full time imprisonment. 24 The applicant challenges his sentence upon the sole ground that it was manifestly excessive. The maximum sentence for the offence of assault occasioning actual bodily harm when dealt with on indictment is five years. The Judge's starting point in this case was a sentence of two and a half years, discounted to reflect the plea. 25 In written submissions Ms Flannery, who appeared on the applicant's behalf, contended that had the charge under s 59 of the Crimes Act of assault occasioning actual bodily harm been preferred at the outset, it would inevitably have been determined in the Local Court, since it is an offence provided for in Table 2 to Sch 1 of the Criminal Procedure Act. The maximum sentence that might have been imposed in the Local Court was one of two years' imprisonment. 26 We were referred to the statistics collected by the Judicial Commission of New South Wales with respect to the sentencing of offenders for offences contrary to s 59(1) of the Crimes Act for the period October 1999 to September 2003 in both the Local Court and the District Court. An examination of these suggests that only 5% or thereabouts of sentences for the offence of assault occasioning actual bodily harm were imposed in the District Court. 27 Ms Flannery relied on the decision of a two judge Bench of this Court in R v Shaw [2001] NSWCCA 498. This application involved a sentence imposed for the supply of a prohibited drug. The quantity was such that the charge might have proceeded in the Local Court. In that case Adams J said at [15]: "Recognising the jurisdictional limit in the Local Court as part of the legislative sentencing scheme is, to my mind, a significant element in the sentencing process where, by accident as it were, a particular offence otherwise appropriate to be dealt with and which inevitably would have been dealt with in the Local Court comes to be considered in the District Court." 28 His Honour had earlier made reference, in dealing with this decision, to the decision of James J in R v Lennan [2001] NSWCCA 17 at [16]: "... The principle stated by the Chief Judge in Crombie ([1999] NSWCCA 297) and by judges of this Court in other cases goes no further than to require a sentencing judge in the exercise of his sentencing discretion to take into account that the prisoner could have been dealt with in the Local Court, if the prosecuting authority had not elected otherwise. If a sentencing judge takes this factor into account, the sentencing judge is not necessarily required to give it much or any weight. In the present case the sentencing judge gave his reasons for not giving the factor any weight and I would not hold that he was in error in his reasoning process or in his conclusion." 29 In this case the Judge did not refer to the fact that the sentence of assault occasioning actual bodily harm is a Table 2 offence and that such offences are commonly dealt with in the Local Court, where the maximum penalty is one of two years' imprisonment. As Crombie makes clear, this is a circumstance to be taken into account. The weight to be given to it will depend upon the extent of the criminality involved in the particular case. 30 Where the Director of Public Prosecutions elects to prosecute a Table 2 offence on indictment, it is likely to be because the facts reveal it to be an objectively serious instance of an offence of this description, or because of some circumstance of aggravation such as that the accused was on parole at the time of its commission. In such cases the jurisdictional limit on sentence in the Local Court may be a matter to which little, if any, weight is to be attached. 31 In written submissions the Crown contended that this was an objectively serious offence. This consideration, together with the applicant's record of past criminal offending, made it a proper case to have been dealt with on indictment. The circumstance that the Judge did not refer to the possibility of summary disposition for offences of assault occasioning actual bodily harm was contended not to have carried with it that she was unaware of that fact: R v Lyons [2000] NSWCCA 337 at [18]. 32 In supplementary submissions Ms Flannery took issue with the stance now taken by the Crown and observed that it did not sit well with the concession made by the Crown Prosecutor at the sentence hearing. It is common ground that the matter proceeded on indictment because the applicant had been committed for trial on a charge of breaking and entering, committing an indictable offence contrary to s 112(1) of the Crimes Act. The Crown determined not to proceed with that charge. This is not a case where the Director of Public Prosecutions made an election that the offence for which the applicant stood for sentence was one to be prosecuted on indictment. 33 The Judge found the offence to be an objectively serious one. I consider that it was open to her Honour to come to that view. The applicant sought out the victim at night in the sanctity of his own home, and committed an unprovoked assault upon him. The Judge was not bound by the concession made by the Crown Prosecutor in this respect. 34 I consider that it was open to the Judge to conclude that the applicant was a person who had been extended leniency by courts on previous occasions, and that no sentence other than one of full time imprisonment was open by way of punishment for this offence. 35 It remained the case that the applicant had not previously been sentenced to a term of imprisonment. While his record showed him to have been a persistent, albeit minor, offender the offence was not aggravated by being committed while the offender was the subject of any form of conditional liberty. 36 Given the Crown's stance before the Judge, and taking into account that this was to be the applicant's first sentence of imprisonment, I am not persuaded that her Honour is to be taken to have given consideration to the pattern of sentencing for offences of this description in the Local Court. 37 Ms Flannery in her written submissions included a table of cases recording instances when this Court has had occasion to consider sentences for the offence of assault occasioning actual bodily harm. She referred us to Baugh [1999] NSWCCA 131; Bloomfield [1999] NSWCCA 196; Philp [1999] NSWCCA 253; Lockyer [2000] NSWCCA 336; Moran [2000] NSWCCA 379; Howard [2000] NSWCCA 378; Burke [2001] NSWCCA 47; Najjarin [2001] NSWCCA 46; Stebbings [2001] NSWCCA 262; Mallott [2001] NSWCCA 453 and Elijah-Jack [2002] NSWCCA 177. 38 The survey lends some support to Ms Flannery's contention that a sentence of two years' imprisonment for the offence of assault occasioning actual bodily harm (after a 20% discount) is a high one. When evaluating a challenge that a given sentence is manifestly excessive, one is concerned with the question of whether the sentence falls outside the range of sentencing for offences exhibiting broadly comparable features. 39 The Judicial Commission statistics also lend some support to Ms Flannery's submission that the pattern of sentencing for this offence reveals the instant sentence to have been a severe one. In considering the statistics maintained by the Judicial Commission in the context of such a submission, it is necessary to bear in mind the observations of Spigelman CJ in R v Lao [2001] NSWSC 1005: "This Court is concerned to determine the appropriate range for the particular offence. The Judicial Commission's statistics do not indicate that range. They reflect what was regarded as appropriate in the wide variety of circumstances in the cases reported in those statistics." [33] 40 I am persuaded taking into account the facts of the offence and the subjective case made by the applicant, including that he had not previously been sentenced to a term of imprisonment, and noting the jurisdictional limit upon sentences when dealt with in the Local Court, that it was an error for the Judge to have taken as her starting point a sentence of two and a half years. 41 To the extent that one can discern an appropriate range for this offence, I consider the sentence imposed upon the applicant to have been manifestly excessive. The applicant has made good his challenge, and it falls to this Court to re-sentence him. 42 The applicant relied upon two affidavits, the first one sworn by him on 4 June 2004 in which he states that since coming into custody he has been employed for most of the period as a clerk with the Drug and Alcohol Service at Cessnock Gaol. While at the Cessnock facility he has undertaken drug and alcohol courses. He has been gradually reducing his methadone intake. 43 His other prime focus while in custody has been on music. He has formed a band with three other inmates. He has obtained satisfaction from this activity, and wishes to continue playing the guitar after his release. On release the applicant plans to return to live with his de facto partner and two children in Taree. The couple plan to marry. 44 The second affidavit is one sworn by the applicant's solicitor, Simon Etherington, on 3 June 2004. That annexes a number of certificates, together with a report from Ms Ambler, an alcohol and other drug worker at the Cessnock Corrective Centre, tending to confirm the matters to which I have already referred. 45 After considering all possible alternatives, I am satisfied that no penalty other than a term of imprisonment is appropriate in this case. I have regard to the general sentencing principles set out in s 21A of the Crimes (Sentencing Procedure) Act (as it then stood) in determining the sentence to be imposed upon the applicant. 46 Having regard to the sentence that I propose the question of special circumstances for the purposes of s 44(2) of the Act does not arise. In my view an appropriate sentence, after making an allowance of approximately 20% in recognition of the plea of guilty, is one of 12 months' imprisonment. The orders that I propose are as follows: 1. Grant leave to appeal. 2. Allow the appeal and quash the sentence imposed in the District Court. In lieu thereof substitute a sentence of twelve months imprisonment to date from 28 August 2003. That sentence will expire on 27 August 2004. I specify a non-parole period commencing on 28 August 2003 and expiring today. I direct the applicant's release on parole at the expiration of that period. 47 DOWD J: I agree. 48 SMART AJ: I also agree. 49 DOWD J: The order of the Court will be as proposed by Bell J.

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