Rudolf v R

Court of Criminal Appeal (NSW)|2016-12-01|Before: Meagher JA, Johnson J, Rothman J

Solicitors: Miers Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/230431 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 8 June 2016 Before: Her Honour Judge Wass SC File Number(s): 2015/230431

Judgment

MEAGHER JA: I agree with Johnson J that Mr Rudolf's application for leave to appeal against his sentence should be refused.

Facts of Offence

What follows is drawn from the sentencing facts which were agreed to in the District Court. The narrative of events is supported, as well, by still photographs taken from the CCTV system at the Maroubra Bay Hotel. In addition, both the Applicant and the victim gave evidence at the sentencing hearing, about which the sentencing Judge made certain findings. Reference will be made to these findings later in the judgment.
During the afternoon of Friday, 27 March 2015, the Applicant (then aged 24 years) was drinking with friends at the Maroubra Bay Hotel. The Applicant is 1.98 metres tall (6'6") and has a large muscular build.
At about 5.45 pm that day, the victim, Corey Adams (then aged 53 years), walked past the veranda area of the hotel with a friend. Mr Adams was considerably shorter and much lighter than the Applicant. Mr Adams stopped to say hello to a member of the Applicant's group whom he knew. Mr Adams shook hands with this person and then lent over the veranda railing and shook hands with the Applicant and others in his group.
It was common ground that Mr Adams knew members of this group, including the Applicant, as he had been their football coach some years earlier.
Mr Adams then moved to another area of the bar and was speaking with friends.
At 5.48 pm, the Applicant walked inside the hotel and moved directly towards Mr Adams who was speaking to a friend. Mr Adams was unaware of the Applicant's approach towards him. Without warning, the Applicant swung an aggressive and powerful right-handed punch which connected with the right side of Mr Adams' face. Mr Adams was knocked backwards and off balance. As he stumbled, the Applicant swung a second punch at him, connecting with the left side of his face and knocking him to the ground. Mr Adams' right knee impacted heavily with the floor, before he collapsed on his back.
The Applicant then turned and walked from the premises. As he walked past the group of persons with whom he had been sitting shortly before, the Applicant exchanged an arm shake or a "low five" with a member of the group who had not shaken Mr Adams' hand on his arrival. The Applicant and this person then left the hotel.
Mr Adams lay on the floor in the bar area and was assisted by a number of persons. Dazed and shocked, he was seated on a stool. He suffered instant and extreme pain in his right knee. He was completely unaware who had punched him until he looked up from the ground and saw the Applicant walking away from him.
As a result of the attack, Mr Adams suffered a hairline fracture to the left side of his jaw and also a grade 1 torn medial collateral ligament in his right knee. He underwent x-rays, CT scans and an MRI and was placed under the care of a knee specialist. Due to his knee injury, Mr Adams was unable to attend work for a number of weeks.
On the afternoon of Friday, 10 April 2015, the Applicant was stopped in a motor vehicle in Sussex Street, Sydney. When asked for his details, the Applicant gave the name and details of a Joshua Reid. Police then conducted a number of checks which revealed his identity as the Applicant. He was arrested and taken to Sydney City Police Station. The Applicant took part in an electronically recorded interview, answering all questions with "no comment".
The Applicant was charged with the present offence and was released that day on conditional bail. He remained on bail until the commencement of his sentence on 8 June 2016.

The Applicant's Subjective Circumstances

The Applicant was 24 years old at the time of the offence and just short of 26 years of age at the time of sentence.
The Applicant has a prior criminal history. In May 2009, the Applicant was sentenced at the Waverley Local Court for offences of stealing from the person and larceny for which he was placed on a two-year good behaviour bond and fined $500.00.
In May 2011, the Applicant was sentenced at the Waverley Local Court for damaging property and common assault for which he was fined and placed on a 12-month good behaviour bond.
In May 2011, the Applicant appeared at the Waverley Local Court on a charge of driving whilst his licence was suspended for which he was fined and disqualified for 12 months.
In December 2011, the Applicant was sentenced at the Downing Centre Local Court for driving whilst disqualified for which he was fined and disqualified for two years.
In May 2013, the Applicant was sentenced at the Downing Centre Local Court for a further offence of driving whilst disqualified with the Court imposing a 12-month good behaviour bond and a further period of two years' disqualification.
A presentence report dated 12 May 2016 was before the District Court as was a report of Dr John Roberts, psychiatrist, dated 1 May 2016 (and earlier reports of Dr Roberts). A number of references were tendered as well in the defence case.

Some Findings in the Remarks on Sentence

Both Mr Adams and the Applicant gave evidence at the sentencing hearing before the District Court.
It is appropriate to record a number of findings of the sentencing Judge to assist the determination of this appeal.
Her Honour found Mr Adams "to be an honest and reliable witness who gave his evidence in a forthright and direct manner" and that he "did not appear … to be embellishing his evidence" (ROS3).
Her Honour described the Applicant's account as "unconvincing" (ROS3-4) and did not accept his account that Mr Adams had treated his team poorly as a coach years before. Rather, the sentencing Judge accepted that the Applicant's actions "were likely to have been a result of a grudge" a friend of the Applicant had with Mr Adams, the friend being the person with whom the Applicant left the hotel after the offence. Whilst finding that the Applicant's account was unconvincing, her Honour accepted that the Applicant also had a grudge against Mr Adams arising in the context of Mr Adams' coaching responsibilities (ROS4). Even with this background, however, the sentencing Judge found that the Applicant's conduct was in no way justified and was unprovoked (ROS4).
Her Honour found that the offence "was opportunistic and only minimally premeditated". Having viewed the CCTV footage, her Honour found that the Applicant "calmly and deliberately carried out this crime, and that within seconds of doing so he equally calmly and almost light heartedly left the scene" (ROS4). Her Honour was left with "the unmistakable impression" that the Applicant "regarded his actions as being an acceptable way of teaching Mr Adams some kind of a lesson" (ROS5).
With respect to the injuries and the gravity of the attack, the sentencing Judge said (ROS2): "Mr Adams suffered a hairline fracture to his jaw and grade 1 medial ligament damage to his right knee, which resulted in him requiring three weeks leave from work. I do not accept the submission on behalf of the offender that this represents injury not at the higher end for an offence of this kind. I find it to be a significant injury in the context of being an assault occasioning actual bodily harm. Mr Adams pointed out the fact that with the offender being 30 years younger and 20 kilos heavier than he, that he feels extremely lucky that he was not more seriously injured, particularly as he was at the time standing on a concrete floor and he was attacked without warning. Whilst I do not sentence him for what might have occurred, as was rightly conceded by the offender's counsel, it was a serious attack by the offender, a younger and larger man, on a smaller and older man."
A victim impact statement from Mr Adams was before the sentencing Judge who said with respect to it (ROS5): "A written victim impact statement was read out by Mr Adams and was tendered. He accurately described the assault as cowardly and unprovoked. He described his injuries and the effect of those injuries upon him and his family. From the statement and from his evidence, whilst Mr Adams, a professional firefighter with 23 years' experience, appears to be a strong and mature man, determined to leave this incident far behind, the other members of his family have not been quite so immune from the offender's conduct. His wife and two sons are now anxious when he leaves the house for a social beer. He now finds himself looking over his shoulder when walking home. His wife is full of rage and anger, needing to see a counsellor and wanting to move away from the area. His oldest son was furious about the offence and wanted to travel to Sydney to mete out revenge. Mr Adams has had to talk him down from that position. His youngest son, whom he describes as kind and gentle, is in deep fear, and his confidence and wellbeing has been detrimentally affected."
The sentencing Judge recounted the Applicant's subjective circumstances and referred, in some detail, to the reports of Dr Roberts and to references tendered on behalf of the Applicant as well as the presentence report (ROS6-10). The sentencing Judge referred to the Applicant's history of substance abuse involving a range of drugs. Her Honour noted that it was readily accepted by the Applicant that "alcohol did have some role to play in the offence" (ROS10).
The sentencing Judge referred to the Applicant's history of offending and to the earlier offence of assault on his criminal record which showed in the Applicant "a desire to misuse his greater size and strength, and to act in a violent way to illustrate his point" (ROS11). In this regard, the sentencing Judge observed that the Applicant "appears to have learned little from that experience and the resultant section 9 bond, although I note that he has served the period on the bond without incident" (ROS11).
The sentencing Judge considered the Applicant's risk of reoffending and noted that "his unresolved emotional issues and difficulties with alcohol still represent a major risk factor regarding future offending" (ROS12).
The sentencing Judge addressed issues of specific and general deterrence (ROS12): "There is a particular need for general deterrence in cases such as this due to the prevalence of unprovoked and unexpected violence in public places. There is a very real need for specific deterrence of the offender, given his lack of impulse control, his lack of treatment to date, and his apparent lack of insight into the reasons for his offending."
The sentencing Judge drew together a number of sentencing considerations and said (ROS12-13): "Relatively sober and with moments of reflection, and with an obvious intent to do harm, the offender left where he was with his friends outside the hotel and proceeded to walk calmly to Mr Adams and without warning land two significant blows to his head causing him immediately to fall, and to sustain the very real injuries that I have referred to. These kinds of assaults in public are terrifying and upsetting for all of those who witness them. The community is entitled to expect that within licensed premises they will be able to conduct themselves in the relative safety and social atmosphere that that offers. These kinds of assaults in public highlight the need to consider the protection of the community when engaging socially and publicly, but also the need for denunciation, retribution and general deterrence. Matters of general deterrence, community protection and retribution assume a greater importance when a crime such as this one causes community disquiet. All too often violence erupts, as it did in this case, with little provocation and in a frightening instant. It is observed in the Courts that a single blow, or in this case double blows, acts of violence are all too common. It is necessary, therefore, for the offender to be appropriately punished and for an element of general deterrence to be reflected in this sentence."
Her Honour referred to the Applicant's relative youth and observed that it remained a significant factor to be taken into account on sentence. A finding was made that the Applicant's prospects of rehabilitation were "guarded" (ROS13).
Her Honour found the Applicant's offence "to be a callous and thoughtless act, on an older and smaller man without warning, and giving him no time or opportunity to defend himself" (ROS14).
Once again emphasising the need for specific and general deterrence in this case, her Honour said (ROS14): "For offences of this kind the community has rightful expectation that judicial officers will impose meaningful penalties. The use of force against vulnerable and unsuspecting and innocent victims in public places calls for the express and demonstrable application of the element of general deterrence as a powerful factor in sentence in this case. As I have said, there is also a need to take into account specific deterrence. I have already remarked that the offender has previously assaulted a woman, albeit in far less serious circumstances, in a public place, indeed in her place of work."
Following a number of other observations, the sentencing Judge allowed the Applicant a 25% discount for his plea of guilty and proceeded to impose the sentence of imprisonment under appeal.

The Ground of Appeal

By Notice of Application for Leave to Appeal filed on 19 October 2016, the Applicant communicated a single ground of appeal that the sentencing Judge erred in failing to consider alternatives to full-time custody.

The Claim that the Sentencing Judge Failed to Consider Alternatives to Full-Time Custody Submissions of the Parties

Mr Corish, counsel for the Applicant, acknowledged that a sentence of imprisonment was appropriate for this offence. He submitted, however, that the sentencing Judge had failed to consider the use of an intensive correction order ("ICO") or a suspended sentence, despite submissions made at first instance that such alternatives ought be considered in this case.
It was submitted for the Applicant that the remarks on sentence made no reference to this submission nor did they expressly indicate a conclusion that such alternatives were not appropriate in this case.
In these circumstances, it was submitted that the Court should find that the sentencing Judge had erred by failing to consider these alternatives in compliance with s.5 Crimes (Sentencing Procedure) Act 1999.
The Crown submitted that error was not demonstrated in this case. It was submitted that a sentencing court is not required to state expressly that it has applied the various stages of sentencing to give effect to s.5 Crimes (Sentencing Procedure) Act 1999.
The Crown submitted that consideration of the facts of the case, and the various findings made by the sentencing Judge, indicated that her Honour did not consider any sentencing option short of full-time imprisonment as being appropriate in this case. Decision
It is necessary for the Applicant to demonstrate error in accordance with the principles expressed by the plurality in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [[1936] HCA 40; (1936) 55 CLR 499 at 504-505], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'."
To make good the ground of appeal, it is necessary for the Applicant to demonstrate that the sentencing Judge erroneously failed to have regard to sentencing options (such as an ICO or suspended sentence). Implicit in such a ground is the assertion that those options were reasonably available in the circumstances of the case.
Section 5 is in the following terms: "5 Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. (2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including: (a) its reasons for deciding that no penalty other than imprisonment is appropriate, and (b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender). (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) A sentence of imprisonment is not invalidated by a failure to comply with this section. (5) Subject to sections 12 and 99, Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order or home detention order."
The fact that a sentencing Judge does not refer to s.5, and to the steps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 at 450 [33]; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [74].
Where submissions are made at first instance by reference to s.5 and the use of sentencing measures short of full-time imprisonment, it is desirable for a sentencing Judge to deal expressly with those submissions by reference to s.5 itself and the factors to be considered by the Court in accordance with R v Zamagias [2002] NSWCCA 17, Douar v R at 165-166 [69]-[72] and Walker v R [2016] NSWCCA 213 at [34]-[40].
The Applicant's legal representative at first instance made a short and somewhat tentative submission only on s.5 and sentencing alternatives at the conclusion of his submission to the District Court. He said (T26, 12 May 2016): "… accepting as I do, and it's a matter entirely for your Honour of course to make the s 5 finding, but I would concede that in my experience and in terms of this matter, that it is a matter given the ferocity of the attack, that your Honour would be looking at a penalty that would involve imprisonment, but that your Honour could consider ICO or a suspended sentence. Unless there's something further, that would complete my submissions."
The sentencing Judge reserved her decision on sentence until 8 June 2016. On that day, her Honour delivered extensive sentencing remarks, to which reference has been made earlier in this judgment.
I have set out, in some detail, her Honour's findings on sentence as they serve to demonstrate reasons for her Honour's conclusion that a sentence of full-time imprisonment was inevitable in this case. Her Honour addressed the objective gravity of the offence and the need for specific and general deterrence. Her Honour had regard to the Applicant's subjective circumstances, including his prior criminal history, and made findings with respect to all aspects of the case.
The irresistible inference is that her Honour determined that the use of an ICO or a suspended sentence in this case was not appropriate.
Her Honour found, correctly in my view, that this was a significant s.59(1) offence having regard to the degree of actual bodily harm caused to Mr Adams: McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 558 [44].
A complete assessment of the objective gravity of a crime of violence should take into account the comparative size and age of the offender and the victim: R v Carroll [2010] NSWCCA 55; 77 NSWLR 45 at 58-59 [58]. As the sentencing Judge observed, here the Applicant attacked a man who was 30 years older than him. The Applicant was 1.98 metres tall. Mr Adams was substantially shorter, as the CCTV photographs illustrate. The Applicant was some 20 kilograms heavier than Mr Adams. Further, the offence was unprovoked and committed without warning, involving two separate punches which sent Mr Adams to the ground causing a knee injury to him in the process. This was a serious offence of assault occasioning actual bodily harm, as the sentencing Judge found (see [28] above). A sentence short of full-time imprisonment would not have reflected the objective gravity of the offence and fulfilled the manifold purposes of punishment: Douar v R at 166 [72].
Further, her Honour's findings concerning the need for specific and general deterrence to be reflected on sentence were correct in the circumstances of the case. Her Honour paid close regard to the Applicant's subjective circumstances in the course of careful remarks, culminating in the imposition of the custodial sentence under appeal. The sentencing remarks effectively excluded any foundation for imposition of a sentence short of full-time imprisonment.
Her Honour had regard to all relevant considerations as part of the process of instinctive synthesis leading to a value judgment as to what was the appropriate sentence given all the factors in the case: Markarian v The Queen at 377-378 [51] (McHugh J).
The Applicant has failed to demonstrate that the sentencing Judge did not consider alternatives to full-time custody in this case. Her Honour's sentencing remarks indicate that, in light of all factors relevant to sentence, the only appropriate sentence was a full-time custodial term as imposed by the Court. This conclusion was entirely appropriate in the circumstances of the case.
I reject the Applicant's sole ground of appeal.

Conclusion

The Applicant has failed to demonstrate error on the part of the sentencing Judge.
I propose that leave to appeal against sentence should be refused.
ROTHMAN J: I agree with Johnson J.

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. Decision last updated: 16 December 2016

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