Regina v Page [2000] NSWCCA 484 | Case summary

1 BARR J: The Court is in a position to give judgment. I will ask Carruthers AJ to give the first judgment. 2 CARRUTHERS AJ: This is an application for leave to appeal against alleged severity of sentence in respect of one count of maliciously inflict grievous bodily harm pursuant to s 35(b) of the Crimes Act 1900, (to which I shall refer as the Act), which carries a maximum penalty of seven years imprisonment, and one count of supply prohibited drug, heroin, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of fifteen years imprisonment and/or a fine of 2000 penalty units. 3 The applicant, who was originally charged with maliciously inflicting grievous bodily harm with intent to do grievous bodily harm pursuant to s 33 of the Act, entered a plea of not guilty to that charge when he was arraigned on 9 November 1998 before Freeman DCJ in the Sydney District Court and pleaded guilty to an alternative charge offered for the first time of maliciously inflict grievous bodily harm pursuant to s 35(b) of the Act as I have indicated. The Crown accepted the plea of guilty to the lesser count in full satisfaction of the indictment. 4 The applicant also pleaded guilty to the third count on the indictment of supply prohibited drug. 5 He was sentenced by Freeman DCJ on each of counts 2 and 3 to a minimum term of two years and six months imprisonment, commencing on 21 June 2000 and expiring on 20 December 2002 and an additional term of two years and six months commencing on 21 December 2002 and expiring on 20 June 2005. Thus the sentences were to be served concurrently. 6 At the time of sentence, the applicant was serving a sentence of a minimum term of two years and two months commencing on 22 April 1998 and expiring on 21 June 2000 and an additional term of one year and ten months. This sentence was in relation to an offence of supply prohibited drug, which was committed after the subject offences. 7 Prior to this last-mentioned sentence, it is necessary to note that on 23 July 1997 the applicant was convicted of knowingly taking part in supply of a prohibited drug and supplying of a prohibited drug. These events again related to events taking place after the subject offences. The appellant was sentenced in relation to those matters to a fixed term of nine months imprisonment from 23 July 1997 to 22 April 1998. Thus the appellant has been continuously in custody since 23 July 1997. 8 There is a period in respect of which he was in custody "bail refused" between May 1995 to February 1996. The applicant contends that this period related solely to the subject offences. However, the Crown has submitted that from the information available to it, it is more likely that this period related to subsequent offences to those presently the subject of this application. That is a matter which must remain unresolved but I shall refer to it at a later stage. 9 The applicant is unrepresented. However, he had written to the Registrar on 25 May 2000 setting out a number of grounds upon which he contended that his sentencing regime should be adjusted. In that correspondence he specifically stated that he did not contend that the overall sentence should be reduced. 10 This morning he has provided the Court with two documents, one headed Appellant's Submissions in Reply and a second document addressed to "Your Honours", consisting of three pages. It is apparent that whoever prepared the document intituled Appellant's Submissions in Reply had a detailed knowledge of sentencing law in this State and those submissions have of course required the Court to give careful consideration to what is raised therein. 11 The applicant was represented before Freeman DCJ at the time of sentence and by consent documentary material was put before his Honour, including statements from relevant potential witnesses, including the victim of the malicious wounding, one Adam Tolmie. No relevant objections were taken to the substance of that material. I shall refer, without I hope undue detail, to a Facts Sheet which by consent was placed before his Honour. That disclosed that on the afternoon of 24 January 1991 Mr Tolmie went to the Battlers Inn Cafe in Darlinghurst Road Kings Cross with a view to purchasing heroin and cocaine from the applicant. It would appear that the applicant was the manager or lessee of that cafe and used it for the purposes of supplying drugs. Mr Tolmie had informed the authorities that he had purchased drugs between 1989 and 24 January 1991 from the applicant on a regular basis. However, on 24 January 1991 a dispute arose between Mr Tolmie and an agent of the applicant who had supplied, on the applicant's behalf, three caps of cocaine to the victim. There was a dispute between Mr Tolmie and the applicant's agent, which obviously resulted in the applicant being informed by his agent that he, the applicant, had been "ripped off" by Mr Tolmie. It is also clear that the applicant resolved that Mr Tolmie should be taught a lesson. 12 Having had this dispute with the applicant's agent, Mr Tolmie left the Kings Cross area but returned later that evening. He was spoken to by a friend of the applicant, one Brett Gallagher, who requested his attendance with the applicant. Not surprisingly, Mr Tolmie declined this request. Mr Tolmie was then accosted by three male persons, described as being of Pacific Islander appearance, who proceeded to assault him in the street. He was then dragged by these persons forcibly along Darlinghurst Road to a place described as the Pink Flamingo brothel in Kellett Street Kings Cross, which it is said was leased or managed by the applicant. It is alleged that the applicant was sighted and he signalled the three Pacific Islander persons to take Mr Tolmie inside the premises. Once inside, the applicant gave instructions to the Islanders, who subsequently assaulted the victim, using their hands and feet. The assault continued and (according to Mr Tomie) his bottom teeth were pushed underneath his tongue. Shortly afterwards, baseball bats were brought into the affray and, at the direction of the applicant, the victim was hit numerous times around the head, body and legs with the bats. 13 Towards the end of the assault, the victim was told to get up and leave the premises. However, due to the injuries he received, he was unable to stand. He attempted to crawl from the premises and when he was unable to move quickly enough, he was splashed with either boiling or hot water by the applicant. As the victim neared the front of the premises, he encountered his brother and another person, who assisted him to a taxi which drove to St Vincents Hospital. He there came under the care of Dr Justin Reid, a medical practitioner, who prepared a report which was before his Honour. That report states, inter alia: "On admission the patient was suffering from multiple head and musculo-skeletal injuries following an alleged assault with a baseball bat. The injuries sustained were (1) head injury, (2) large laceration and facial bruising (3) loose teeth (4) bruising to the right shoulder (5) fractured right ulna and (6) fractured right scaphoid. The treatment required was blood transfusion due to blood loss, the suturing of the head laceration, the fixing of a plaster cast for the fractured arm, neurological observation and analgesia." 14 The victim discharged himself against medical advice the following day for reasons which are in dispute and which it is not necessary to pursue. 15 I shall not attempt to deal with the detailed written submissions that have been put before the Court this morning in their entirety. Firstly, however, it is necessary to note that the applicant contends that his Honour erred in imposing a cumulative sentence dating from the expiration of the minimum term which he was serving at the date of the imposition of the subject offences. The effect of this accumulation is that the applicant contends he is serving an aggregate minimum term of four years and eight months with an additional term of two years and six months. The applicant contends that the subject sentence should be backdated to 14 December 1998, the date upon which he was sentenced by Freeman DCJ. If this argument were to succeed, of course, this would necessarily mean that part of the sentences for the present offences would necessarily be served concurrently with the sentences imposed on 11 February 1998. This would have the effect of reducing the minimum term by eighteen months. 16 It is necessary to note that counsel for the applicant before Freeman DCJ submitted that since the applicant was in custody until 21 June 2000 his Honour should commence any sentence for the subject offences as from 14 December 1998, otherwise his Honour would, to use the words of counsel, "run the risk of imposing a massive and crushing sentence in a cumulative setting". 17 His Honour rejected this submission, stating that there were ways of adjusting the impact of the subject sentences on the existing sentences by reference to special circumstances. His Honour correctly, if I may respectfully say so, thus acknowledged that the accumulation itself was capable in law of constituting special circumstances. His Honour also adverted in some detail to other matters capable of constituting special circumstances and which he, in fact, took into account as special circumstances, namely the prisoner's health, in particular his diabetes, hypertension and phobias arising from a condition of claustrophobia. Another factor which was specifically taken into account was that the applicant had been stabbed in 1995 whilst in custody during the remand period, to which I have already made reference. 18 His Honour also took into account the applicant's pleas of guilty and his "attempts at a display of contrition and for his attempts at self-modification". 19 In summary, his Honour said "I do not think that the proper approach is one involving deference to the principle of totality. The supply went on longer than the assault but the assault arose out of the misunderstanding or mishandling, which is common to supply." 20 His Honour went on to say "It was in fact directed by the prisoner against Mr Tolmie as a punishment, not only of Mr Tolmie but as an earnest demonstration of the length that the prisoner could be seen to go in order to discourage others." 21 His Honour then referred to the serious objective circumstances and the need for the sentence to contain a deterrent element. 22 In his submissions to this Court, the applicant referred to the judgment of this Court in R v Gower (1991) 56 A Crim R 115. In that case, the effect of the accumulation of sentences by the sentencing judge was that the applicant received an effective overall minimum term of four years imprisonment with an additional term of only four months. The sentencing judge thus, it was held, erred, particularly as he had not even considered the question of the relationship between the minimum term and the additional term. However, as the Crown has pointed out in their submissions, the same cannot be said in this case, because the sentences imposed by Freeman DCJ had the overall effect of an aggregate minimum term of four years and eight months with an additional term of two years and six months. Thus the Crown contends in the circumstances of this case the relationship between the minimum term and the additional term cannot be said to be an inappropriate relationship, particularly bearing in mind that the subject offences were quite unrelated to the offence in respect of which the applicant was serving the sentence upon which there was an accumulation, and the same may be said of the earlier offence upon which that offence was itself an accumulation. 23 It is clear from what I have already said that there is no substance in the applicant's submission that his Honour failed to consider special circumstances. 24 In the arguments handed up to the Court this morning, the applicant has argued in some detail and with some care that his Honour failed to adhere to the principles enunciated by the High Court in The Queen v De Simoni (1981) 147 CLR 383 at 389. This is because although the Crown had accepted the plea of guilty to the second count, which was under s 35(b) of the Act, his Honour has (it was argued) by remarks during the course of the sentencing process made statements indicative of his having treated the matter as one falling under s 33 of the Act. 25 It is important to note that s 35(b) of the Act is in the following terms, so far as is relevant. "Whosoever maliciously by any means ... (b) inflicts grievous bodily harm upon any person shall be liable for imprisonment for seven years."

26 As the presiding judge pointed out during the course of argument, the definition of "maliciously" in s 5 of the Act, insofar as relevant, provides "Every act done of malice, … or done without malice but with indifference to human life or suffering or with intent to injure some person or persons and in any such case without lawful cause or excuse or done recklessly or wantonly shall be taken to have been done maliciously within the meaning of this Act and of every indictment or charge where malice is by law an ingredient in the crime." 27 Thus the element of the offence to which the applicant pleaded guilty involved necessarily an intention to inflict some actual bodily harm upon the victim, or reckless or wanton conduct resulting in actual bodily harm. 28 There was clearly evidence before his Honour that the applicant caused harm by the directions which he gave to the persons described as Pacific Islanders sufficient to amount to actual bodily harm upon the applicant. 29 Having carefully examined the remarks on sentence by his Honour and given full weight to the arguments raised by the applicant, I am completely unpersuaded that during his remarks on sentence his Honour went beyond consideration of the element of intention to inflict actual bodily harm and considered factors relevant only to an intention to inflict grievous bodily harm. 30 It was also contended that his Honour erred in the way in which he applied himself to the question of whether the applicant had demonstrated remorse or contrition and considered the prospects for rehabilitation. It was submitted that in so doing, his Honour should not have taken into account the commission of the offences subsequent to the subject offences. 31 I do not think, in the overall assessment of this matter, that what his Honour said about the element of contrition or remorse or otherwise could play any role in disturbing the sentences which he imposed. I am not satisfied that his Honour took into account, in sentencing for the subject offences, the criminality involved in the subject offences by way of in any way inflating the sentences that he would otherwise have imposed. 32 It was also said that his Honour acted improperly in accumulating the subject sentences on the sentences to which I have made reference at a time when those sentences were under appeal. There is no substance in my view in this argument. 33 It is also submitted that his Honour failed to give adequate weight to the subjective circumstances and, in particular, the applicant's declining and serious state of health. 34 The subject offences were extremely serious. The malicious infliction of grievous bodily harm represented a degree of wickedness which is almost breathtaking. When one considers the objective seriousness of both offences and balances that against the subjective circumstances (that were properly before his Honour) it is quite impossible, in my view, to hold that the sentences imposed by his Honour were outside the sentencing range available to him, or that in any respect he erred in making those sentences cumulative upon the sentences which the applicant was already serving. It would not matter, in the overall scheme of things, whether the remand period to which I have referred of some ten or eleven months between 1995 and 1996 were served solely in relation to the subject offences, or as the Crown contends, more likely to be related to the subsequent offences. 35 In all the circumstances, I consider that the application for leave for appeal should be granted and I would so propose, but I would further propose that the appeal be dismissed. 36 BARR J: I agree. The orders of the Court are as proposed by Carruthers AJ. ***********

Regina v Page

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