REGINA v. MAGRIN & WATSON [2000] NSWCCA 346

1 MASON, P: I invite Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: Both of these matters are appeals by the Director of Public Prosecutions in respect of sentences imposed in the District Court by his Honour Judge Ford. It is convenient to deal with both together. 3 The appeals are brought under s.5D of the Criminal Appeal Act 1912. It is asserted in respect of each sentence that it is inadequate. I understand that it is intended to assert by this that the sentences were "in error in point of principle", as is referred to by Sir Garfield Barwick in Griffiths v. The Queen (1977) 137 CLR 293 at 310 and if allowed to stand would be productive of the kind of manifest inadequacy or inconsistency in sentencing standards as is referred to by the High Court in Everett v. The Queen (1994) 181 CLR 295 at 300. Appeals brought in those circumstances are appeals in which the Director exercises the exceptional power vested in him by s.5D to invoke the court's function to lay down principles for the governance and guidance of sentencing courts in such circumstances as apply in the instant cases. 4 It is the submission made here, and as I understand it underlying the appeal, that each of the sentences is in their duration and nature so far outside the permissible range of the exercise of a proper discretion by the sentencing judge as to require the intervention by this court and that, notwithstanding the exercise of the court's well known discretion either to refrain from intervening or, on intervention, to pass a substituted sentence less than that which might otherwise have been appropriate at first instance. 5 The principles relating to appeals in these circumstances have been set forth in such authorities as The Queen v. Allpass (1994) 72 A. Crim. R. 561; The Queen v. Kalache [2000] NSWCCA 2. 6 Insofar as the appeal is an appeal against a discretionary judgment below, it is necessary to have regard to the performance by the primary judge of a discretionary function in which, in the intuitive synthesis required, that judge balances the various appropriate matters to be taken into account on sentence. The judge's findings of fact are not brought in question on such an appeal unless they are insupportable. However, in the event that there was error below, even though the precise nature of that error cannot be identified, this court might intervene (Cranssen v. The King (1936) 55 CLR 509 at 519 to 520). 7 In Histollo v. The Director General of National Parks and Wildlife Services (CCA, unreported 10 December 1998), the court examined rights of appeal to this court and in particular referred to what had been said concerning appeals in relation to sentence by Hunt, CJ. at CL. in The Queen v. Symonds (1995) 79 A. Crim. R. 31 at 35. There, his Honour pointed out that the appeal is not by way of re-hearing and this court does not re-canvass findings for which an adequate basis existed below. 8 Again, in The Queen v Kurtic (1996) 85 A. Crim. R. 57, this court returned to that theme, concluding that this court sits as a Court of Appeal, not for the purpose of re-hearing evidence to re-determine facts, but for dealing with error of law. 9 In the present case, it is contended that the sentences were in error. In the case of Mr. Watson, after his plea of not guilty to the offence of maliciously inflict grievous bodily harm, for which a maximum of seven years imprisonment is provided, there was a lengthy trial. He was found guilty and was sentenced to 12 months imprisonment to be served by way of periodic detention. He had been charged with the aggravated form of the maliciously inflict grievous bodily harm offence but the jury did not find the element involved in that offence, that is, that he intended the infliction of grievous bodily harm. 10 Mr. Magrin was charged with being an accessory to the malicious infliction of grievous bodily harm, that offence too was punishable by a maximum of seven years imprisonment. To that offence, after the trial, which for medical reasons he was unable to attend, he pleaded guilty. The Crown accepted that plea in full discharge of an indictment which had originally, as with Mr. Watson, charged him with the more serious offence. Having regard to 52 days pre-trial custody, the trial judge sentenced him to imprisonment for 16 months, involving a minimum term of 12 months and an additional term of four months. 11 At trial, two co-accused, Messrs. Foxton and Hamilton, were also found guilty of offences arising from their involvement in a plan to have the victim, Mr. Hank Baard, assaulted by one Faber who, the trial judge found, inflicted upon the victim with considerable brutally the most appalling injuries which caused permanent brain damage and sight defects. 12 The Crown, in its submissions to this court, refers to the sentences passed upon those others, Messrs. Foxton and Hamilton. Mr. Foxton was sentenced to imprisonment for 20 months with a minimum term of 15 months; Mr. Hamilton to receive the benefit of the deferral of sentence upon a recognisance under s.558 of the Crimes Act 1900 for a period of three years coupled with supervision. 13 In his remarks on sentence, the trial judge referred to the injuries sustained by the victim as follows:- "Those injuries were, to put it mildly, very, very serious, so much so that he has lost the sight in his right eye and there seems to be no question that that eye will be excised at some time or another and replaced by a glass eye or artificial eye. The details of the injuries sustained by Mr. Baard are set out in a report from Dr. Vera Veerabangsa of the Brain Injury Rehabilitation Unit at Liverpool. That report refers to the serious injury to his eye and generally speaking the serious injury to the head of Mr. Baard, who for example suffered a compound fracture of the left frontal bone with underlying extradural haematoma and left frontal lobe contusion and subarachnoid haemorrhage, extensive fractures of mid facial bones and right eye injury and a fractured left clavicle." 14 His long term injuries were set out in victims' impact statements that were tendered in evidence, which were provided not only by the victim himself but also by his daughter. 15 The long-term results of the attack upon the victim, who suffers problems with memory, blood pressure, loss of taste and smell, the necessity for daily medication, his larynx no longer functions which interferes with his ability to swallow, he is blind in one eye and is no longer to work in his chosen occupation. 16 His Honour further described the events by reference to the evidence given by the attacker who, following his plea of guilty and sentence, gave evidence for the Crown. That description includes the attacker using a baseball bat which he had concealed under his jumper and kicking, punching and beating the victim, including beating him with the baseball bat about the head so as to occasion the injuries to which I have referred. His Honour also described the assault as vicious. It undoubtedly was. 17 It is not necessary on this appeal to discuss the distinctions between the count of conspiracy to maliciously inflict grievous bodily harm with which the co-accused were charged and the counts against the two respondents, one of which expressly pleaded accessoryship to infliction of grievous bodily harm, the other of which implicitly embraced it. 18 The facts which the Crown contends may be extracted from his Honour's reasons and which it is submitted his Honour found in consequence of the evidence given at trial in the case of Mr. Watson it would appear, from that evidence and the statement of agreed facts, tendered in the case of Mr. Magrin, showed the circumstances in which the assailant came to inflict those injuries. It was disclosed that Messrs. Foxton and Hamilton, apparently for reasons arising out of their participation in the activities of a fishing club, conceived an antipathy to the victim, the president of that club, in consequence of having been caught cheating and having been stripped of points they had earned in a club fishing competition. Mr. Foxton apparently sought widely for a person to assault the victim. Having made contact with the assailant himself, Mr. Foxton then utilised the services of Mr. Magrin in respect of the negotiations as to what would occur. There was a meeting between the assailant Faber and Mr. Watson, the assailant's neighbour, with Mr Magrin and another person on 26 April 1998, in which arrangements were discussed to carry out the assault in return for a payment of some $2000. It would appear that that sum of $2000 was to be the total financial reward for Messrs. Magrin, Watson and Faber and on this appeal the Crown has conceded that the lion's share probably went to the assailant, although it is not possible to stipulate who was to get how much. 19 Following these arrangements, there was a meeting at a club when some $500 were passed over and Magrin identified the victim to Faber and Watson. A joint plan was devised which embraced the idea that the victim would be assaulted as he walked alone underneath a bridge and the assault made to look like a robbery. There was discussion between Foxton and Faber concerning Foxton's hatred of the victim. 20 When Faber, the assailant, gave evidence at the trial, he made reference to discussions with Hamilton concerning "it would be a bonus" if the victim was "hospitalised". At points in the transcript there is reference to "kneecapping". There was reference too, to a suggestion made to those involved that the victim was a sex offender, apparently to afford some justification for what was about to happen to him. There was no evidence or basis to suggest the victim was any such thing. The allegation was a complete fabrication. 21 When the victim left the club, he was followed by Faber, the assailant, Watson and Magrin. Faber and Watson went to Watson's car, where Faber armed himself with a baseball bat which however he kept concealed up his jumper. He removed the bat from concealment when he approached the victim and assaulted him as I have described. After the attack, Watson drove the assailant from the scene and later assisted in the disposal of the baseball bat and other clothing. 22 Certain of his Honour's findings of fact were to some extent in greater detail than this terse summary. In particular, his Honour set out the background to the antipathy felt by Messrs. Foxton and Hamilton towards the victim, the injuries, the evidence of Mr. Faber as to what he had done to the victim. His Honour refers in detail to the evidence for consideration of what intent or state of mind the offenders had at the time of the crime. He found finds the following:- "The reason I refer in detail to the evidence is simply this, that that was an extraordinarily brutal attack made by Mr. Faber but I do not think it was the sort of attack that was anticipated or contemplated by any of the persons who are before the court here today. What I am sure they wanted, the present prisoners, was that there should be a certain degree of roughing up of the victim, Mr. Baard. I cannot imagine they ever had any idea that Mr. Faber would take a baseball bat and use it to inflict the extraordinarily severe injuries which Mr. Baard has sustained." 23 In his particular findings in respect of Messrs. Watson and Magrin, his Honour as to Watson found that although he assisted Faber by driving him away from the scene of the crime, he was not present at the actual crime and held that the general finding to which I have referred was applicable to his individual case. 24 In the matter of Magrin, his Honour referred to Magrin making the necessary arrangements to admit the persons to the club, supervising the departure and following in order to carry out the undertaking. His Honour holds:- "I do not believe that you ever imagined that Baard would suffer the injuries sustained at the hands of Faber." 25 His Honour referred to the fact, in that context, that Mr. Magrin has a borderline intellectual impairment. His Honour held that Mr. Magrin was aware there would be the attack by Mr. Faber and makes that finding but in the context of the earlier findings to which I have referred. 26 In the facts that were presented on the plea by Mr. Magrin, there is reference to the arrangement by Mr. Magrin for the assault to be carried out. However, at no point in those facts is there, at least expressly, any matter which would suggest that his Honour's finding was not open to him to make. It has not been suggested in the submissions both written and oral by the Crown that it was not open to his Honour to make a finding which it appears he did that the prisoners did not intend that there be such injuries inflicted but indeed intended that there should be that certain degree of roughing up his Honour adverted to, to which I have referred. 27 On argument in the appeal, the Crown's attention was drawn to the decision of this Court in The Queen v. Stokes & Difford (1990) 51 A. Crim. R. 25 to define the legal content of the offences with which the trial judge was concerned. In summary, that decision holds that the offence is committed if the accused knew that the principal intended to strike the victim and that the principal intended to inflict some physical injury on the victim, or realised that some such injury might result and with that knowledge the accused encouraged the principal to commit the offence. 28 It would appear in those circumstances, that decision being accepted by the Crown as applicable here, that his Honour's findings are not out of accord with the verdict of the jury or the plea. Nonetheless it is submitted by the Crown that the consequences of the conduct of the retained assailant were such as to show that his Honour had failed to translate his findings on the severity of the injuries and the brutality of the assault into the sentences he had passed so that those sentences were unduly lenient. It is put that there was nothing in the subjective features to which his Honour referred which would have justified what is asserted to be a considerable degree of leniency. It is further put that the participation by the two respondents in the offence for the sake of financial reward put the matter in the worst category of case by analogy from the reasoning in cases involving the imposition of the sentence of life imprisonment for offences of murder. No comparison is possible or validly made with the sentence passed upon the assailant since he was charged with the offence under s.33 under of the Crimes Act 1900 which is punishable by a maximum of a totally different order. 29 The specific submissions made by the Crown in relation to each of the two respondents were, in the case of Mr. Magrin, that he was a willing and active participant in a plot to bash, that in the case of Mr. Watson that, although he furnished assistance to the authorities, a matter to which his Honour properly had regard and although he did not have the prior record that affected Mr. Magrin, nonetheless he contemplated a degree of harm, and carried out a role, which involved active participation such as to be analogous to that of the driver in a getaway car in an armed robbery. It was put that for him there could only be a matter of limited mitigation, in his not having actually participated in the attack. 30 The submissions advanced on behalf of the Crown fail in my view to have regard to his Honour's detailed and specific findings relating to the individual involvement and contemplation of each of the two respondents. This Court does not sit to overturn such findings if there is evidence to support them as there was here. 31 Given the role of each of the respondents and given the findings as to what they each contemplated, I am not persuaded that the sentences are so far beyond the range of a proper sentence, even if it could be argued that they did exceed that range which I do not think it can that the appeal should be upheld. 32 There is a further matter. There is no Crown appeal in respect of the sentences passed upon Messrs. Hamilton and Foxton. For my part, I would regard that as a relevant matter on the question of this court exercising discretion to intervene in the event that I were of the view that the sentences were otherwise appealable under s.5D. However, in my view, it is not necessary to resolve the issue of whether parity should be examined as a matter going to the sufficiency of the sentence below or a discretion not to intervene in this case. 33 In all the circumstances I am of the view that each appeal should be dismissed. 34 MASON, P: I agree. 35 LEVINE, J: I agree. 36 MASON, P: That is the order of the court.

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