Regina v Hatch [2006] NSWCCA 330 | Case summary

1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Nicholson DCJ in the District Court in proceedings which were heard in Bourke and later in Sydney. The respondent had been committed for sentence after pleading guilty in Bourke Local Court to a charge of entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation contrary to s 111(3) of the Crimes Act 1900. The specified offence was assault occasioning actual bodily harm and the circumstance of special aggravation was that he wounded the occupant of the house. 2 The structure of applicable maximum penalties pursuant to s 111 is that entry with relevant intent is punishable by up to ten years imprisonment but up to fourteen years in circumstances of aggravation and up to twenty years in circumstances of special aggravation. Section 105A prescribes that wounding any person is a circumstance of special aggravation. 3 His Honour sentenced the respondent to imprisonment for twelve months which he suspended upon entry by the respondent into a bond to be of good behaviour for that period pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The expressed reason for not specifying a non parole period and imposing a fixed term was the intention to suspend the sentence. His Honour also imposed a number of conditions which were, in short, that the respondent accept supervision of the Probation and Parole Service and follow the reasonable directions of the officers of that Service, that he submit to random urine analysis three times monthly during the first six months of sentence and thereafter once per month, and to supply to the Probation and Parole officer each month during the currency of the bond a "report or some evidence" that the respondent had been attending counselling for mental health problems through the Darling River Medical Centre. Whether the lastmentioned condition is sufficiently certain to be valid is not an issue in this appeal: cf R v Bugmy [2004] NSWCCA 258 and compliance with these conditions as stated should, for the purposes of the appeal, be regarded as contributors to the punishment imposed. 4 The learned sentencing judge recounted the facts in much detail and what was said has not been challenged and can be regarded as accepted. A summary now will suffice. 5 The respondent had been in a relationship with a female who was, at the time of the offence, aged seventeen years and I will refer to her simply as "CD". At a previous time CD had been in another relationship with one Aaron McKellar. As at 16 July 2005 the respondent and CD were parents of a child who had been born in April 2004. Both the respondent and Aaron McKellar in fact have children from former relationships other than with CD. 6 Several days beforehand an argument occurred between the respondent and CD because she was "running around" with McKellar. Consequently the respondent packed his belongings into his car and he was, in effect, sleeping in and living from the vehicle. 7 On the evening of 16 July the respondent encountered a relative of McKellar and drove him to the latter's house. CD was there. The respondent made derogatory comments to her and argument erupted. The respondent left the house and went to his car but he returned with a baseball bat from among his belongings and re-entered the house. He struck McKellar three or four times with the bat causing a laceration to his head which required stitching and the fracture of a finger bone. The respondent was then confronted by two male relatives of McKellar and he left. In the meantime, McKellar acquired the baseball bat and used it to shatter the windows of the respondent's car. McKellar was subsequently taken to hospital for treatment where he was discharged after a stay of about ten hours. 8 The respondent gave evidence in the sentencing proceedings. He told his Honour that he had no excuse and that anger had got the better of him. He had earlier been drinking. He also said in response to a question by his Honour that he was "firmly under the belief that eventually he (McKellar) was going to attack me" but no claim of self defence was advanced. 9 In his remarks on sentence his Honour stated the age of the respondent to be twenty four years whereas in fact at the time he was twenty six years of age. He also referred to the maximum penalty for the offence of assault occasioning actual bodily harm as two years imprisonment but this is applicable to common assault and the correct figure is five years imprisonment. 10 The Crown has also drawn attention to a number of references by his Honour to the respondent's formation of an intention to commit the stated serious indictable offence including: "It will become obvious as I continue on that I have some concerns about whether I ought to have accepted that plea because it seems to me that it may well have been after he entered the second time that he formed the intent to strike McKellar."

and "The attack on Aaron McKellar appears to have occurred on impulse. There is some doubt in my mind as to whether as (the respondent) returned he was intending to hit anyone. He had been abusing CD in the bedroom. He had told Wilson (the passenger whom he had transported) that he was angry with CD. It was likely he was returning to give her more of what he had earlier given her. Upon his return McKellar was the person nearest the front door. He was blocking (the respondent's) access to CD, both metaphorically and physically. It is likely at that moment (the respondent) determined to strike McKellar with the intent of causing him at least physical pain." 11 It was an essential element of the charge that the respondent harboured the intent to commit the serious indictable offence when he entered the dwelling and, despite those observations, it must be taken that the plea of guilty contained an admission of that fact. 12 The appellant presents submissions in support of the ground of manifest inadequacy under three express heads. The first two can conveniently be dealt with together as they were in the Crown written submissions. They are: "(a) His Honour failed to appreciate the gravamen of the offence. (b) His Honour failed to acknowledge the seriousness of the injury sustained." 13 It was essential for the culpability of the respondent to be assessed against his acceptance that he entered McKellar's house with the specific intent of committing assault occasioning actual bodily harm and that he in fact wounded the victim. To achieve this he had armed himself with the baseball bat which is in the category of being an offensive weapon. 14 In reference to the element of wounding his Honour said in his remarks: "The wound itself, while occasioned in a vulnerable area of the body was, as events turned out, not life threatening, although there is some suggestion of concussion, nor did it amount to more than actual bodily harm. As such, this was towards the lower end of the range of seriousness for offences so described." 15 Maliciously inflicting actual bodily harm is a circumstance of aggravation elevating an offence contrary to s 111 so as to make available a fourteen year maximum penalty. The offence charged to which the respondent pleaded guilty was in the specially aggravated category by reason of his wounding McKellar and attracted a twenty year maximum penalty prescription. 16 Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim: R v Donovan 1934 2 KB 498, whereas wounding requires the breaking or cutting of the interior layer of the skin and it does not suffice to cut merely the outer layer of skin: R v Smith 1837 8 C & P 173. 17 The Crown contention that his Honour's remark reveals an error should be sustained. That said, it still needs to be recognized that the consequences of wounding can vary widely and the level of the wound to the victim in this instance can be gauged against the ingredients and the requisite treatment which I have described above. Fortunately, the wounding did not result in injuries which were in the category of very great seriousness. So to say is not to minimize the culpability of the respondent for the attack which his Honour rightly called cowardly. 18 The third submission of the Crown was expressed: "(c) His Honour accorded too much weight to the age of the respondent." 19 I have already noted what is conceded to be a minor inaccuracy of his Honour's statement of the age of the respondent, however, it is noteworthy that the first word in his Honour's remarks on sentence was "youth." He made repeated references to this factor when dealing with antecedents and rehabilitation prospects in particular. When referring to the latter he observed that the respondent did not come before the courts until the age of twenty one and, given the difficult circumstances of his upbringing which he detailed, the comment that this was creditable was clearly justified. It also provided a sound basis for contemplation that the respondent may be able to re-establish himself in a life free of offending. 20 It is not, of course, exactly discernible how much weight his Honour gave to the respondent's youth or how it was precisely reflected in the sentence imposed, but I am not able to conclude that "too much weight" was given to this factor. 21 Nevertheless, having regard to the overall circumstances of the offence and the injury to the victim and to the contentions of the Crown which I consider should be sustained, I conclude that the sentence is manifestly inadequate in the sense that the ancillary order for suspension excessively ameliorated any element of punishment for the crime. 22 There remains, however, in this Court a residual discretion which may be exercised to dismiss a Crown appeal. In determining whether such a discretion should be implemented it is appropriate to consider what has happened in the interim. I note that on the day of imposition (30 June 2006) the respondent had travelled from Bourke to Sydney and he was accompanied by both his mother and CD with whom he had resumed relationship and, as was put, the matters of tension between them had "resolved themselves." 23 When the appeal was called this morning, again the respondent was present with what appear to be members of his family. In addition, the court has been provided with the affidavits of the respondent affirmed on 9 October 2006 and of his solicitor affirmed on 10 October 2006. 24 Exhibited to the latter affidavit of Stella Calomeris is a further report from the Probation and Parole Service in Bourke which shows, as is affirmed in the affidavit of the respondent, that he made every effort to comply with the conditions of his bond but the approach seemed to be taken by the Probation and Parole personnel that once the appeal by the Crown was lodged they did not have any function in regard to the sentence. 25 It is not a present issue before this Court as to whether or not that stance is correct. What is important, in my view, for present purposes is that the evidence shows a bona fide attempt by the respondent to improve himself. The updated Probation and Parole Report is promising indeed and there is a summary, which I will quote, which seems to me to adequately fit the situation. The author of the report, Ms Dewar said this: "Mr Hatch is a young man who appears to have acted without due thought for the consequences resultant in the matter now before the Court. However, he has since made some positive attitudinal and lifestyle changes, coupled with securing employment which has increased his sense of responsibility. To his credit he may have seen the error of his ways and is endeavouring to adapt more lawfully which may augur well for the future." 26 Although, as I have said, I regard the sentence imposed at first instance as manifestly inadequate, in all the circumstances I think it is an appropriate case for the exercise of the residual discretion of this Court. I would, therefore, propose that the Crown appeal be dismissed. 27 TOBIAS JA: I agree with Grove J. 28 BELL J: I also agree. 29 TOBIAS JA: The order of the Court will be that the appeal is dismissed. **********

Regina v Hatch

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