Regina v Kirkland

Regina v Kirkland - [2005] NSWCCA 130 - NSWCCA 2005 case summary — Zoe

[19]

10 In elaboration of that general finding, the judge made two sets of factual findings. The first set of findings were: (i) that the two men prepared a plan to set upon the victim and to threaten him with the gun; (ii) that, at the time they left Bobak's unit, one of the offenders had armed himself with the plasterer's hammer to the knowledge of the other offender; and (iii) that, at least by the time the attack on the victim commenced, each of them, using the plasterer's hammer, intended to inflict on the victim the type of very grave harm which was in fact inflicted on him, knowing that he would be unarmed and virtually unable to defend himself from such an attack. So far as the applicant is concerned, the second in this set of findings must be interpreted as one that Bobak had the plasterer's hammer in his possession when they left his unit to the knowledge of the applicant. 11 The judge immediately went on to make the second set of factual findings: (i) that, although the applicant did not himself inflict the injuries on the victim, he was a participant in a joint criminal enterprise with Bobak to maliciously inflict grievous bodily harm to the victim with intent to do so; (ii) that the applicant knew, by the time the attack commenced, that Bobak was going to use the plasterer's hammer to attack the victim in the manner he did and to inflict on him the type of very grave harm which was in fact inflicted; and (iii) that, having such knowledge, he was present and participated jointly with Bobak in the attack on the victim. 12 The differences between the two sets of findings, so far as they concern the extent of planning and premeditation involved, are significant in various ways to the submissions made by the applicant in his application for leave to appeal. (A) Finding (i) in the first set of findings imputes to both offenders at the time they left Bobak's unit an initial plan to "set upon" the victim and to threaten him with the gun, whereas finding (i) in the second set appears to impute to both offenders an initial plan to maliciously inflict grievous bodily harm to the victim with intent to do so. (B) The expression "set upon" appears to have been the judge's own inference. It is not defined, but it obviously means some form of violence (albeit not with the plasterer's hammer). No complaint has been made concerning the expression used, and counsel appearing for the applicant in his application for leave to appeal accepted that it was an appropriate inference from the agreed facts. (C) It is not entirely clear from the judge's remarks on sentence just when the alternative initial plan referred to in the second set of findings (to inflict grievous bodily harm to the victim) was formulated but, in order to be consistent with finding (ii) in the second set of findings, it is necessary to interpret this alternative initial plan as having been agreed to only at the time the attack commenced. Such an interpretation considerably reduces the severity of the violence to the victim which had been planned and premeditated when the two men left Bobak's unit. (D) The first set of findings imputes to the applicant knowledge that Bobak had the plasterer's hammer with him from the time they left Bobak's unit, but it is important to note that the judge did not make any finding of fact that the applicant knew from that time that Bobak was going to use that tool in the way he did. It was not argued otherwise by counsel for the applicant. Although the applicant's knowledge that Bobak was in possession of the tool from the beginning could in some circumstances have extended the original joint criminal enterprise (merely to set upon the victim and threaten him with the gun) to include violence with that tool - if he had participated in that enterprise with the contemplation that such use of the tool in the way Bobak did use it was a possible incident in the execution of that enterprise - that is not how the judge approached it. Again, this considerably reduces the extent of the planning and premeditation involved at the time the two men left Bobak's unit. 13 The first submission by the applicant is that it was not open to the judge to find that, at the time they left Bobak's unit, he knew that Bobak had armed himself with the plasterer's hammer. Such a finding was a matter in aggravation of the sentence to be imposed. It therefore had to be established to the satisfaction of the judge beyond reasonable doubt: Regina v O'Neill [1979] 2 NSWLR 582 at 588; Regina v Story [1998] 1 VR 359 at 369; The Queen v Olbrich (1999) 199 CLR 270 at [27].

[32]

29 Another subsidiary submission is that the judge's differentiation between the sentences imposed on the two men was based on the subjective features relating to each of them. That submission is rejected. When the judge turned to deal with the applicant after dealing with Bobak, he said: As the role played by the offender Bobak in the offence involving the attack upon Mr Law involved a greater level of criminality than the role played by the offender Kirkland, because it was the offender Bobak who wielded the implement which sustained Mr Law's devastating injuries, the sentence to be imposed on each offender for that offence will have to reflect the differing roles and consequently greater level of criminality of the offender Bobak. The judge went on to draw a distinction between the two men - in each case in favour of the applicant - as to the degree of aggravation to be applied in relation to (i) the fact that the offence was committed whilst on a bond (one bond for a non-violent offence for the applicant; two bonds each for a violent offence for Bobak), and (ii) the degree of personal deterrence required (substantial for Bobak, who had a previous criminal history including violence and dishonesty; the applicant to be treated leniently as a first offender). 30 There was no error made by the judge in doing so. Nor do these factors taken into consideration by the judge give rise to any issue of parity between the two sentences imposed. The additional actions by the applicant of stomping on the victim, jumping on his head twice and kicking him in the knowledge that he had already been horrifically injured by the use of the axe blade on the plasterer's hammer - to the extent that the tool could not be removed from his head - had to be taken into account by the judge as balancing out to at least some extent the fact that the applicant did not use the tool to vertically cleave the frontal lobe of the victim's brain and to inflict the other damage to his brain.

[36]

34 The applicant has listed a number of what are said to be mitigating circumstances which should, it is said, have placed his offence somewhat further down the scale: 1. The lack of any "real" planning The absence of planning or premeditation has little relevance to mitigation in this case in the light of the horrific nature of the attack which occurred. Its extent is more relevant to the extent of aggravation present, a matter which has already been discussed. 2. The presence of alcohol This was given little weight by the judge, an approach which was open to him on the evidence. 3. A sense of grievance on the part of Bobak because of his suspicion that the victim had stolen something from his daughter This was not a matter in mitigation in favour of Bobak, and even less so in favour of the applicant. 4. The level of injury was not such as to deprive the victim of the total or even the most of the enjoyment and facility of living I have already rejected this submission. 5. The level of violence, although severe, was not such as could be considered prolonged or humiliating in nature As the victim already had the plasterer's hammer embedded in his skull when the applicant slammed the victim's head into the ground and then, with knowledge that the tool was still embedded in the victim's skull, stomped on the victim, jumping on his head twice and kicking him, the offence was sufficiently prolonged as to aggravate the crime. The absence of humiliation in those circumstances meant that the crime was not aggravated in that way; it was hardly a matter of any weight in mitigation. 6. The victim did not fall within any category of persons generally considered to be vulnerable Again, the absence of vulnerability in the circumstances of this case meant that the crime was not aggravated in that way; it was not a matter of any weight in mitigation. 35 None of these matters, even when taken together, required the judge to consider the circumstances of this case as amounting to other than one at the very upper end of the range of sentences imposed for offences of this type. The applicant nevertheless argues that, if that be so, then the sentence imposed on Bobak on which his sentence was largely based must be regarded as being higher than the current range. Even this be so - and I am by no means persuaded that that is so when considering the offender who actually cleaved the victim's brain with the axe blade - that does not mean that the sentence imposed on Bobak is affected by appealable error. There must always be room for a case which, although not meriting the maximum sentence, merits a sentence which is somewhere between the maximum reserved for the worst category of case and the highest sentence imposed since the sentencing statistics commenced in 1991. But this is not an appeal by Bobak, and no final conclusion need be expressed in this case.

[38]

37 The fourth submission made by the applicant, which is related to the last submission, is based on: (a) an acceptance that this case should have been considered as one in the middle of the range of objective seriousness for inflicting grievous bodily harm with intent, and (b) a comparison between: (i) the non-parole period of eight years imposed - which would have been ten years before the discount for pleading guilty, and (ii) the standard non-parole period of seven years set by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act - which, it was said, may act as a guide to sentencing judges. 38 That argument fails. First, for the reasons I have already expressed, the judge was justified in considering that the present offence deserved a sentence at the very upper end of the range of sentences imposed for offences of this type. The standard non-parole period in that Table is directed to offences in the middle of the range of objective seriousness (s 54A(2)). Secondly, the present offence was committed before 1 February 2003, which is the earliest date for offences to which Division 1A applies: Regina v Way (2004) 60 NSWLR 168 at [38]. Thirdly, because the standard non-parole periods set by the Table to that Division are intended as the starting point for mid-range offences after conviction and before adjustment for either aggravating or mitigating circumstances, they are generally different from the minimum terms or non-parole periods imposed before that Table became applicable in the sentencing process: Regina v Way at [140] - [141]. Finally, and no doubt for that reason, this Court has held that it is erroneous for a sentencing judge to sentence in accordance with that Table for an offence which occurred before that date: Regina v Wilkinson [2004] NSWCCA 83 at [83] - [85]; and, indeed, erroneous even to consider the standard non-parole periods in that Table as providing guidance in cases to which Division 1A does not apply: Regina v Ohar (2004) 59 NSWLR 596 at [83] - [85].

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Judgment (42 paragraphs)

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Cases Cited (9)