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[2002] NSWCCA 401
Court of Criminal Appeal (NSW)
2002-09-17
Wood CJ, Sully J, Howie J
Original judgment source is linked above.
The Application for Leave to Appeal against Sentence 79 It is convenient to quote the following extract from the written submissions of the appellant: "The Sentence imposed is manifestly excessive. Her Honour erred in not giving sufficient weight to the accused's previously good character, the time delay, rehabilitation or the fact that Gibson was not the kicker. Her Honour erred in law in imposing a custodial sentence in relation to the Hansen account [sic] as such was not warranted and, in partially accumulating the sentence." 80 It is useful to quote the following passages from the clear and careful remarks on sentence of the learned sentencing Judge: "The offender gave evidence in the trial. He gave an account of the events preceding and on Thredbo Terrace which clearly the jury must have rejected. The offender's culpability in this event is extremely high. Whatever else might be said about the incident inside the Aspen Hotel it was in itself quite minor. The offender had ample time to cool off after it, but he waited for the unsuspecting victims to leave in order to confront Clinton Portelli to exact revenge for some perceived slight or injustice. Not only did he wait, I am satisfied beyond reasonable doubt he was the ringleader of this joint criminal enterprise. The offender is to be sentenced on the basis that he intended to cause Mr. Portelli some bodily harm. He is entitled to the full benefit of his acquittal of the more serious charge that he intended the grievous bodily harm that was inflicted. I am not satisfied beyond reasonable doubt that he kicked Mr. Portelli to the head but he remained there aiding and encouraging those who did at a time when Mr. Portelli was lying defenceless on the ground as a result of his blows. This can only be described as a premeditated, cowardly and vicious attack by a larger group of at least four men on two others. The community rightly expects that those who inflict gratuitous violence on its innocent citizens will be appropriately punished. The sentences must reflect considerations of general and specific deterrence." 81 The submissions put for the appellant do not challenge in any specific way any of those findings of fact made by her Honour. In my opinion the findings were amply open to her Honour on the whole of the evidence before her. 82 It is not submitted that her Honour failed to take account at all of previous good character, time delay, rehabilitation, or the fact that the appellant was not the person who actually did the kicking to Mr. Portelli's head. What is contended, rather, is that it is plain on the face of the sentences passed upon the appellant that her Honour cannot have given proper consideration to those matters. 83 I do not accept that submission. 84 The attack on Mr. Hansen was, in the given circumstances, bad enough; but the attack upon Mr. Portelli was very much more serious. Mr. Portelli had to be brought by helicopter from Cooma to Sydney, such was the severity of the injuries inflicted upon him. He suffered a severe head injury, fractures to the right orbit and zygoma bones, fractures to the base of the skull on the right side, pneumothorax, lung contusions and anterograde and retrograde amnesia of the event. He required in-patient care at the brain injury unit at Ryde Rehabilitation Centre. 85 The consequences to Mr. Portelli of what was done to him were described by the learned sentencing Judge, with every justification in my opinion, as "catastrophic". Her Honour details, in her remarks on sentence, the consequences thus: "……………….. (H)e has permanent brain damage; he suffers from post-traumatic psychosis which is directly attributable to the assault and which is anticipated to be long term and which has required several admissions to a psychiatric hospital. He is on anti-psychotic medication which is anticipated to be for a long-term period. He has significant cognitive dysfunction with agitation, distractibility, reduced memory and reduced language skills. He has ongoing high level balance problems. He has changed from an independent young man working as a chef, to a man dependent on his family and unable to work in his previous occupation, or at all, since the assault. Long term parental, family, friend or agency support will be required for his accommodation, meals, clothing, finances etcetera. Doctor Norrie, his family doctor, noted his life achievement potential has been severely reduced by the assault." 86 It must surely go without saying that an assault which produces consequences of that kind calls, even after every proper allowance is made for relevant subjective matters, for the imposition of a severe sentence. I do not think it can be said reasonably that a sentence of 4 years and 6 months is an excessive head sentence in such a context, and bearing in mind that the statutory maximum penalty is imprisonment for 7 years. 87 The submission that the learned sentencing Judge erred in law in imposing a custodial sentence at all in relation to the attack carried out on Mr. Hansen, cannot, in my opinion, be responsibly accepted. To accept that submission would be tantamount to sending a signal into the relevant parts of the community that concerted attacks upon two separate victims are no more culpable, and no more punishable, than a concerted single attack upon one only of those victims; provided only that the separate attacks take place at, or more or less at, the same time. It seems to me that such a proposition is plainly unsustainable, both as a matter of law and as a matter of good sense. 88 The submission that the learned sentencing Judge erred in law by partially accumulating the sentences is, also, a submission that I do not accept. Her Honour's approach to the partial accumulation of the sentences seems to me, with respect, to have held a fair and sensible balance between the need, on the one hand, to punish and deter two distinct attacks upon two separate victims; and, on the other hand, the need to respect the principle of totality by not simply accumulating both sentences. 89 There is no particular attack made upon the non-parole period fixed by her Honour. In my respectful opinion it does not depart from the fair exercise of the relevant sentencing discretion.
Orders 90 For the whole of the foregoing reasons I propose the following orders:
[1] That the appeal against conviction be dismissed.
[2] That leave be granted to appeal against sentence.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Troy Terrence Gibson
CITATION : Regina v Troy Terrence Gibson [2002] NSWCCA 401 FILE NUMBER(S) : CCA 60295/02 HEARING DATE(S) : 17 September 2002 JUDGMENT DATE : 3 October 2002
COUNSEL : Mr. E. Wilkins - Crown Mr. P. Byrne SC/Mr. G. Turnbull - Appellant SOLICITORS : S. E. O'Connor - Crown Forsters, Solicitors - Appellant CATCHWORDS : Criminal law - procedure at trial - Crown Prosecutor's decision not to call in the Crown case a particular witness - discussion of the duty of a Crown Prosecutor in that connection. - Criminal law - alleged miscarriage of justice at trial deriving from the decision of the Crown Prosecutor not to call a particular witness in the Crown case - discussion of principles to be applied in determining whether or not a miscarriage of justice has in fact occurred. - Criminal law - procedure at trial - admission of photographs depicting the physical injuries sustained by the victim of a very severe physical assault - discussion of relevant principles. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 The Queen v Apostilides (1984) CLR 563 R v Kneebone (1999) 47 NSWLR 450 CASES CITED: Randall v The Queen [2002] l WLR 2237 Wilde v The Queen (1988) 164 CLR Festa v The Queen [2001] HCA 72 (13 December 2001] DECISION : Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed
Ground 4 69 The ground is: "In circumstances where there was no issue as to the fact and nature of injury suffered by the victim, Her Honour erred in admitting evidence of photographs taken of the victim in Hospital following the assault upon him, and in permitting the Crown to call the victim as a witness in the case although it was know that he had no recollection at all of the relevant events." 70 The victim referred to in this ground is Mr. Portelli. It was not controversial at the trial that Mr. Portelli had been savagely assaulted in a way that had caused him serious injuries having serious continuing consequences for him. 71 As to the admissibility of the evidence of Mr. Portelli, there was a voir dire hearing in connection with which her Honour gave a judgment, part of which reads: "A fact in issue in the trial is whether either of the accused was a person who was responsible for the injuries inflicted upon Mr. Portelli. Mr. Portelli's evidence is relevant to that fact in issue as it explains his inability to give any account of the events in question, including any identification of his attackers. Evidence is not taken to be irrelevant only because it relates to a favour ….[sic: but read failure]……... to adduce evidence, see section 55(2)(c) of the Evidence Act [1995]. The probative value of the evidence is slight, however, there is no danger of unfair prejudice to the accused. The jury will be instructed in the summing-up that they must decide the case without sympathy or prejudice. As McHugh J said in R v Gilbert [2000] HCA 15, paragraph 31: 'Unless we act on the assumption that criminal juries act on the evidence in accordance with the directions of the trial judge, there is no point in having criminal jury trials.' " 72 In my opinion this analysis was correct both in law and in fact. 73 As to the photographs, her Honour delivered a separate judgment in which, among other things, her Honour said: "In my view the photographs are relevant to two facts in issue, namely, whether the injuries were inflicted with the intention of inflicting grievous bodily harm and, secondly, whether grievous bodily harm was inflicted on the victim. The photographs are highly probative of those facts in issue. As the Court said in R v Allen, CCA, unreported 1 December 1992: 'Photographs usually have a high probative value. They make clear to the jury what no amount of oral description can make clear and they are direct evidence of the injuries which they are tendered to prove.' Any danger that the photographs, if admitted, will give rise to the danger of unfair prejudice to the accused will be cured by a direction I will give to the jury before they are admitted and which I will repeat in my summing-up. In my view the probative value of the photographs is not outweighed by the danger of unfair prejudice to the accused and they will be admitted into evidence. Before they are admitted I propose to give the jury what I regard to be an appropriate direction and warning as to how such photographs will be dealt with." 74 In my opinion this approach of the learned trial Judge was correct. No present complaint is made that her Honour did not do, or did not do adequately, what she had undertaken to do in the matter of giving relevant directions to the jury. 75 I would not uphold Ground 4.
(1999) 47 NSWLR 450
(1988) 164 CLR 465