Regina v GOH [2002] NSWCCA 234 | Case summary

14 June, 2002 Regina v Ian GOH Judgment 1 BLANCH J: This is a Crown appeal by the Director of Public Prosecutions under s5D of the Criminal Appeal Act, 1912 from an order made by Judge Finnane on 18 January, 2002. 2 The respondent pleaded guilty to one count of affray pursuant to s93C of the Crimes Act which proscribes a maximum penalty of five years imprisonment. His Honour dismissed the charge pursuant to the provisions of s10 of the Crimes (Sentencing Procedure) Act, 1999. The Crown submission is that the sentencing judge erred in applying the provisions of s10 and that in the result the order of the Court was manifestly inadequate. 3 A statement of facts was tendered which stated that at about 12.15 a.m. on Saturday, 28 October, 2000 the respondent was at Galaxy World, George Street, Sydney with three friends. They became aware of the presence of another group of people with whom there had been a previous incident and one of the respondent's friends then went to telephone his brother to ask him to return to the city and the brother did so with another friend. At 12.50 a.m. the respondent and the collected group of his friends met at Galaxy World and walked to Dungate Lane "for the purpose of confronting the other group. They knew that a fight was likely to take place. 4 On reaching Dungate Lane, the group, including the Defendant, armed themselves with bottles and approached the other group. Initially pushing occurred and then blows were struck between the groups. Bottles were thrown and persons were chased in the alley way but not by the defendant. Windows to cars were smashed. Persons, not including the defendant were kicking and punching and hitting with bottles. 5 The Defendant later told investigating police that he didn't have time to throw a bottle but saw Carlo Estera fighting with two people. The Defendant then went and "swung" one of the persons off Carlo Estera. The defendant was then grabbing him on the ground (ERISP 18/12/00 Q183). The Defendant stated that he was "grabbing the guy and stuff, pushing him round, I hit him", (ERISP 18/12/00 Q216). A witness, Cuong Lam later complained to police of being struck to the face by the Defendant. 6 After a period of time the fight died down. The participants from the Defendant's group left the laneway. They returned shortly after they realised one of their number had dropped his car keys. At this point a group of other people arrived from a nearby nightclub and the fight resumed. Shortly after the fight resumed the Defendant was running to assist a friend. He then told police, "I must have tripped and found myself on the ground," (ERISP 18/12/00 Q239). The Defendant remained on the ground for the rest of the fight. During this time the Defendant was attacked on the ground by a number of other persons. The Defendant was hit with kicks and bottles. He was also struck about the body and head with a car steering wheel lock. The defendant suffered a fractured arm, a laceration to the head requiring stitches, and cuts and bruises to the legs and back." 7 At the hearing of this matter before the sentencing judge the respondent gave evidence. His evidence was that he did not know there was going to be a fight until he got to the lane. He said he was standing behind the others next to a person called Rod when he was accosted by a man sitting in a car. He said that man got out of the car and came at him and he thought he was going to be hit so he "hit him first" with his fist to the man's head. He then walked off with Rod. He said his other friends followed until someone realised they had left their keys behind in the lane so they went back to get the keys. He said he was following behind his friends and saw one of them attacked by five people. He went to go to his friend's assistance but he was knocked over and he was then assaulted apparently with a bottle and also with a wheel lock. He was subsequently taken to hospital and he said he had two broken arms and a number of cuts and bruises to his body. He said he had never been involved with either of the groups "in any situation prior to this particular night". He gave specific evidence that he did not pick up a bottle. 8 The evidence given by the respondent contradicted the statement of facts which had been tendered. In particular it contradicted the assertion in the statement of facts that the respondent's group "… walked to Dungate Lane for the purpose of confronting the other group. They knew that a fight was likely to take place." It also contradicted the assertion in the statement of facts that "…the group including the defendant armed themselves with bottles and approached the other group." The respondent was cross-examined about why he had told the police he had a bottle and he said he was "probably confused" when speaking to the police. 9 The sentencing judge made findings of fact arising from the evidence given which included the showing of a video of part of the incident in Dungate Lane. The judge's findings included the fact that "others in the group decided this would be a good opportunity to confront another group". The sentencing judge also noted the offender himself was not a member of either of these gangs. He also said of the respondent: "Having seen him give evidence and be cross-examined, I am prepared to accept he did not have a bottle in his hand." The sentencing judge then accepted the version given by the respondent as to how he came to punch one man. He also noted that the video shown to the Court of part of the fighting in Dungate Lane did not show the respondent involved in that fighting. He also appears to have accepted the assertion of the respondent that he had no intention of fighting and was there because his friend Mr. Lee Tran was going to his home later that day. 10 The sentencing judge concluded "I am satisfied on the evidence that he did not intend to involve himself in this affray, that essentially his striking of the man Kung Lam was done in the form of self-defence, but of course, in the circumstances, that would not have justified him in pleading not guilty because he could equally have just walked away from the lane. Once he involved himself in striking someone, he took part in an affray so he correctly pleaded guilty to an affray. The affray that he was involved in involved himself and this other man." 11 The Crown submissions acknowledge that an appropriate sentencing range might include a supervised recognizance. It is submitted, however, that the failure to record a conviction has the effect that there was no punitive aspect to the order of the Court and that it contained no relevant personal or general deterrence. 12 Authorities in this Court have established that the Crown can demonstrate manifest inadequacy where a discretion not to record a conviction under s10 is exercised. In R v Paris [2001] NSWCCA 83 the Court overturned an order under s10 and bearing in mind the principles of double jeopardy, imposed a suspended sentence for 2 years. In R v Lord [2001] NSWCCA 533 the Court overturned an order under s10 and substituted a suspended sentence of 18 months. 13 The Crown submission in this case is that the sentencing judge erred in making the findings of fact he did. On the other hand there was nothing unusual about the course taken at the sentence hearing. The respondent was called to give evidence to dispute the statement of facts which was tendered and having seen the respondent give evidence, having been informed of his background and having seen the video of the fighting in Dungate Lane, the judge made his findings. The respondent was relevantly cross-examined by the Crown only as to his having a bottle and why he had told the police another story. In my view the judge was entitled to make the findings of fact which he did. These findings of fact involved the judge concluding the respondent was only peripherally involved in what had happened and that he was as much a victim as he was a perpetrator. Section 10(3) of the Crimes (Sentencing Procedure) Act sets out matters the Court must consider when exercising a discretion not to record a conviction. They are: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence; (c) the extenuating circumstances in which the offence was committed; (d) any other matter that the Court thinks proper to consider. 14 The sentencing judge did not consider the provisions of s10 in terms. He did, however, note the youth and antecedents of the prisoner which is relevant under paragraph (a). He did analyse the seriousness of the offence and characterise it as at the bottom of the scale which is relevant to paragraph (b). He did consider the extenuating circumstances which is relevant to paragraph (c). 15 Bearing in mind the unique position the sentencing judge was in to determine the facts in this case, in my view there is nothing to indicate he has committed any error in that regard. Having made the findings he did it was then up to him to consider the exercise of a discretion not to record a conviction under s10 of the Act. To exercise such a discretion for a criminal offence tried on indictment is not a common occurrence. Moreover, as the judge noted, this area of Sydney has an unfortunate history of violence and therefore there are strong public policy reasons for imposing sentences which reflect general deterrence. Having said that, however, I am not persuaded that in the circumstances of this case as they were found to be by the sentencing judge, it could be said that the orders of the judge are manifestly inadequate. 16 I would dismiss the Crown's appeal. 17 SPIGELMAN CJ: I agree. 18 ADAMS J: I also agree. 19 SPIGELMAN CJ: The order of the Court is that the appeal is dismissed.

Regina v GOH

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