Smith v R

Court of Criminal Appeal (NSW)|2017-07-19|Before: Hoeben CJ, Price J, Adamson J

Solicitors: Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/244791 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 10 June 2016 Before: Norrish DCJ File Number(s): 2014/244791

Judgment

HOEBEN CJ at CL: I agree with Adamson J.
PRICE J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed upon her by Norrish QC DCJ in the District Court at Queanbeyan on 10 June 2016 following her plea of guilty on 7 March 2016 to the offence of causing grievous bodily harm with intent. The standard non-parole period for that offence is 7 years and the maximum penalty is 25 years.

Procedural summary

The background to the applicant's plea was as follows. She had been committed for trial from Queanbeyan Local Court on two charges: cause grievous bodily harm with intent in respect of Andrew Mclnnes (the victim), contrary to s 33(1)(b) of the Crimes Act; and reckless wounding of Michael Hancock, contrary to s 35(4) of the Crimes Act.
On 7 March 2016, the day on which the matter was listed for trial by jury before Colefax SC DCJ, at the Queanbeyan District Court, the Crown presented an indictment which contained only one count: cause grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act. This was the charge to which the applicant pleaded guilty on that day.
The facts were, in summary, that the applicant forcibly kicked the victim, who was her ex-husband, in the head many times whilst he was lying on his back on the ground during an altercation in a hotel in Queanbeyan.
The other two co-accused, Matthew Davis, who was the applicant's partner at the time, and Keith Charnock also pleaded guilty on 7 March 2016. Mr Davis pleaded guilty to the offences of reckless wounding in respect of Mr Hancock and reckless grievous bodily harm in respect of the victim whilst in company. Mr Charnock pleaded guilty to reckless grievous bodily harm in respect of the victim whilst in company.
On 9 March 2016 the parties appeared again before Colefax DCJ. A combined statement of facts, signed by the applicant, each of the two co-offenders and the Crown, was marked for identification.

The sentence hearing

On 9 June 2016 the applicant and the two co-offenders appeared at Queanbeyan District Court before Norrish QC DCJ for sentence. In respect of the applicant, the Crown tendered a bundle which comprised the indictment; the statement of facts; criminal and custodial histories; the Form 1; the s 166 certificate; the victim's impact statement; and the pre-sentence report prepared by Nicholas Bish dated 12 May 2016. The Crown also tendered three photographs of the victim's injuries; CCTV footage of the incident; and a copy of a transcript of a number of SMS text messages between the applicant and the victim from late 2012 to early 2013 towards the end of their relationship. In addition, the Crown tendered in respect of the applicant and the two co-offenders (at the request of Mr Glissan, who appeared for Mr Davis), without objection, five witness statements, namely: Trent Miller dated 14 August 2014; Jason Webster dated 14 August 2014; Richard Watson dated 15 August 2014; Owen Lund dated 26 September 2014; and Kurt Mason dated 15 August 2014.
At the hearing, the applicant's counsel objected to the tender of the facts as an agreed statement as there was an issue about the conduct of the two co-offenders prior to any physical involvement by the applicant. The two co-offenders also objected to the statement of facts. Accordingly, their sentence hearings proceeded on the basis that any disputed facts concerning what had occurred would be resolved by the sentencing judge viewing the CCTV footage, the interpretation of which was disputed.
There was no issue that, towards the end of the incident, the applicant could be seen on the CCTV footage kicking the victim in the head whilst he was lying on the ground. The only substantive issue was the number of approaches made by the applicant and the number of kicks.
The sentencing judge viewed the CCTV footage of the incident, depicted from various camera angles. His Honour also went on a view of the premises. It does not appear that his Honour placed any particular weight on the witness statements referred to above, except in so far as they supported the view to which his Honour came as a result of viewing the CCTV footage that the applicant had kicked the victim "on repeated occasions".
The evidence adduced on behalf of the applicant comprised a psychologist's assessment report dated 3 May 2016 by Danielle Clout. Character references from Ashleigh Dunleavy, a friend of the applicant; and Cynthia Cummins, a friend and former employer who had known the applicant professionally and personally for 24 years since employing her in her hairdressing business, were also tendered. The applicant did not give evidence.
At the conclusion of the hearing the sentencing judge reserved judgment and passed sentence on the following day, 10 June 2016.

The sentencing judge's factual findings

In the remarks on sentence the sentence judge made the following findings.
The applicant and the victim separated in early 2013 following a domestic relationship for a number of years. Shortly after the separation the applicant began an intimate relationship with the co-offender, Mr Davis. There remained tensions between the applicant and victim which arose from his custody of their two daughters. The applicant alleged that the victim did not allow her to see her daughters. The eldest daughter apparently did not want any contact with her mother and the applicant was only permitted to see her youngest daughter from time to time and when they were in the presence of the victim. The applicant blamed the victim for the children's attitude.
On the evening of 9 August 2014 the victim and a good friend, Mr Hancock, arrived at the Walsh Hotel in Queanbeyan at about 11.30pm. They entered through the main doors and walked into the front bar. At that time the applicant and Mr Davis were also there, socialising with others.
Shortly afterwards, the CCTV footage shows that Mr Davis moved swiftly to attack Mr Hancock. He struck him once with a clenched fist to the head as a result of which Mr Hancock, who was knocked unconscious, fell heavily. His head and right elbow struck the tiled floor. He did not regain consciousness until after the incident. Mr Davis turned his attention to the victim whom he struck on the head. The victim fell backwards but managed to regain his feet. Mr Davis was restrained and dragged away by others. However, he struggled against the attempts of hotel security staff to try to subdue him. Mr Charnock joined the altercation in which Mr Davis, the victim and hotel security staff were involved. He struck the victim's head a number of times. Mr Davis broke free from the security staff and joined Mr Charnock's attack on the victim who was, by this time, lying on his back on the ground.
At about this time, the applicant, who was wearing boots, joined in the attack and started kicking the victim's head many times with full force. As the CCTV footage showed, she advanced towards him on at least three separate occasions and kicked him to the head numerous times on each occasion. The sentencing judge referred to seeing three perhaps four kicks on each occasion but acknowledged there may have been others that he did not see.
On each occasion the applicant was forced back by security staff. She would break free and then, sometimes after talking to someone else nearby, return to continue kicking the victim in the head. Although the victim sought to protect himself, he was effectively defenceless as he was on the ground and there were other people on top of him.
In the course of her attack on the victim, the applicant also kicked the arm of Mr Webster, a hotel security guard who sought to intervene. This is the offence of common assault which is on the Form 1.
Eventually the security staff was able to control the situation. The victim rose to his feet despite the fact that he was bleeding heavily from the head. His lower jaw was fractured in two places. He lost a tooth. His face was bruised and swollen after the attack. During the days following his hospitalisation the victim suffered a stroke as a result of which he is now legally blind in his left eye. He has ongoing headaches. He will remain on blood thinner medication for the remainder of his life and has a cognitive impairment, the consequences of which include difficulties with his short term memory. He tires frequently, which causes him to drag his right leg. He suffers continuing discomfort from the realignment of his jaw.

The sentencing judge's assessment of objective seriousness

The sentencing judge assessed the objective seriousness of the applicant's offending as "in the middle of the midrange, perhaps slightly to the lower side of the middle of the midrange". The sentencing judge referred to the applicant's conduct as repeated, deliberate and targeted and noted that the victim was on the ground at the time of the attack and was completely defenceless. His Honour also took into account the nature of the injuries suffered by the victim and that there was no planning or pre-meditation.
His Honour had earlier observed that, whilst he could not conclude that there was any pre-meditation on the applicant's part, she opportunistically but repeatedly sought to exact what he found to be some revenge upon the victim for what she regarded as the frustrations or the slights that she had suffered arising from her separation from her children.

Aggravating factors

The sentencing judge found no aggravating factors relevant to the applicant. His Honour considered her conduct to be independent of the two co-offenders and, accordingly, did not find that the offence was committed in company.

Form 1 offence

The sentencing judge took into account the offence on the Form 1 which involved the security staff. As his Honour considered that the offence was committed in circumstances which were entirely incidental to the primary offence, he did not regard it as a matter that materially increased the sentence for the principal offence.

The pre-sentence report of Mr Bish

The sentencing judge referred to the contents of Mr Bish's pre-sentence report. His Honour noted that the applicant had informed Mr Bish that she was a self-employed hairdresser, residing with her de-facto partner of two and half years, and co-parenting his four step-children aged between five and fifteen years. She told him that she had two natural daughters with the victim, but was denied access to them and contended that this circumstance was central to the conflict which led to her offending conduct.
His Honour also recorded that the applicant reported no problematic alcohol use and denied any current or past illicit drug use and that she had been receiving ongoing treatment for mental health issues for the past decade. Her general practitioner reported that she was currently receiving medication and psychological therapy for depression which developed following the onset of post-natal depression in 2001.
Mr Bish assessed the applicant as having a low risk of re-offending and considered the applicant would benefit from a period of supervision.

Ms Clout's report

The applicant was referred for assessment to Danielle Clout, psychologist, and assessed on 30 April 2016, some 20 months after the offence. In her report dated 3 May 2016, Ms Clout used as the basis of her assessment the applicant's self-reporting and psychometric testing. The applicant gave her an extensive description of what she alleged were the circumstances of her relationship with the victim. Ms Clout also recorded a detailed description of the offence that had been given to her by the applicant. The applicant had described seeing the victim on the ground with Mr Davis on top of him. She started to kick Mr Davis and told him to get off. When Mr Davis got up and the victim was still on the ground the applicant told Ms Clout that she "panicked" about the victim stopping contact with her daughter due to the fight. She just wanted him to get up so she said that she then kicked the victim "one time in an attempt to force him to get up."
In summary, Ms Clout opined that, at the time of the offence, based on the applicant's self-reporting and psychometric testing, the applicant would have met the DSM-V diagnostic criteria of Adjustment Disorder, which was probably triggered in about June 2013 when her separation from the victim became increasingly hostile, and he began threatening her safety, and withholding access to her children. Ms Clout considered that, at the time of the assessment, the applicant met the DSM-V diagnostic criteria for Major Depressive Disorder. She also opined that the applicant had a low risk of re-offending. Ms Clout recorded that the applicant had expressed considerable remorse to her that the victim had been injured and suffered a stroke. Ms Clout opined that given the applicant's symptoms and limited coping strategies, full-time custody would be likely to adversely affect the applicant's mental health and might tend to make her depression worse.

The sentencing judge's findings on subjective matters

His Honour ultimately concluded that he could not act on the applicant's untested, self-reported history which formed the foundation for some of the opinions that had been expressed by Ms Clout. His Honour found that the applicant's account to Ms Clout of the circumstances of her break-up with the victim and of the victim's early attitude towards her was contradicted by objective evidence in the form of the text messages the Crown had tendered relating to the period in late 2012 and early 2013. His Honour found that because he could not accept the account that the applicant gave of her relationship with the victim, he could not act upon some of the opinions that had been expressed by the psychologist. The sentencing judge accepted in a general way the background history that the applicant had given of her childhood, her work history and that she had had post natal depression after the birth of both of her children for which she received medical assistance. His Honour also accepted that the applicant exhibited symptoms of depression when she saw Ms Clout. However, his Honour was not prepared to accept Ms Clout's report in so far as it was based on the applicant's assertion of threats and conduct by the victim at the time of the offence.
On the basis of the CCTV footage, his Honour rejected the account which the applicant gave Ms Clout of the circumstances of the offending which included that she only kicked the victim once because she desperately wanted him to get up so he would not distance her children from her further. On this basis, his Honour did not accept Ms Clout's opinion and found that he could not be satisfied that there was any mental illness or mental disability that was causally connected to the applicant's conduct.
The sentencing judge did, however, accept that at the time of the offences the applicant continued to be distressed about being separated from her children and that she resented the victim for this. However, he found that her multiple repetitive actions were more consistent with wanting to hurt the victim and acting out of frustration with vigour and with determination. His Honour accepted Ms Clout's assessment that the applicant was currently suffering from a major depressive condition and her opinion about the likely effect that being in custody would have on the applicant.
His Honour accepted Ms Clout's opinion that the applicant would need assistance upon release in the community through a mental health treatment plan and counselling for emotional management and conflict resolution.

Mitigating factors

The sentencing judge found that the applicant's offending was not part of a planned or organised criminal activity. His Honour also found that she had no record of previous convictions and that she was a person of prior good character. He regarded the offending conduct as uncharacteristic and considered that she was unlikely to offend and had good prospects of rehabilitation.

Discount for plea

His Honour found there to be utilitarian value in the plea of guilty and allowed 15 per cent.

Special circumstances

The sentence judge made a finding of special circumstances on the basis that it would be the applicant's first term of imprisonment, she had at the time of sentence "ongoing mental health issues to some extent" that would require professional counselling, and to enable the applicant to re-assimilate back into the community. His Honour reduced the statutory ratio of 75 per cent between the non-parole period and the total term to 49 per cent on this basis.

The Notice of Appeal

A notice of intention to apply for leave to appeal was filed on 1 July 2016. Its expiry of 1 January 2017 was extended to 15 June 2017. The notice of application for leave to appeal was filed on 5 May 2017, together with grounds of appeal and two sets of written submissions.
The applicant, who was self-represented in this Court, relied on five grounds which can be summarised as follows: 1. The sentencing judge failed to take into account her history of mental health or her mental health. 2. The sentencing judge failed to take into account remorse. 3. The sentencing judge failed to take intoxication into account. 4. The sentencing judge did not take the applicant's version of the incident into account. 5. The sentencing judge failed to allow a 25 per cent discount for the applicant's plea of guilty.

Alleged failure to take into account the applicant's history of mental health or mental health at time of offending (ground 1)

The applicant contended that the sentencing judge failed to take into account her history of mental health or her mental health at the time of the incident. The applicant submitted that her anxiety and depression at the time of the incident added to her reaction to the fight and that she reacted in a way she normally would not. She has provided this Court with a detailed history of her mental health and her state of mind at the time of the incident in her written submissions.
In my view this ground has not been made out. As the detailed narrative set out above demonstrates, his Honour gave careful consideration to the report of Ms Clout. However, his Honour concluded that, at least in respect of Ms Clout's view of the causative connection between the applicant's mental state and the offending conduct, he could not accept Ms Clout's opinion since it was based on a version of the facts which had not been the subject of sworn evidence by the applicant and which he had rejected on the basis of other evidence (the texts and the CCTV footage).
His Honour's approach was orthodox and does not reveal any error. Ms Clout's opinions rested, at least in part, on a history which his Honour either did not accept, rejected, or found not to have been established. In these circumstances, his Honour was entitled to place such weight on the opinions of Ms Clout as he considered they warranted, having regard to the whole of the evidence adduced at the sentence hearing. His Honour accepted those of Ms Clout's views which were properly based (such as the applicant's mental state at the time of the examination) and rejected those opinions which were based on a false foundation (the narrative of the incident which was at odds with what was depicted on the CCTV footage).
His Honour was entitled to treat with caution the opinions expressed in the reports of Mr Bish and Ms Clout. Their views were of limited weight, in so far as they were based on facts which reflected the applicant's unsworn versions: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] per Smart AJ, Spigelman CJ agreeing.

Alleged failure to take into account the applicant's remorse (ground 2)

The applicant submitted that the sentencing judge failed to take any remorse into consideration. She contended in her written submissions: "I have always showed remorse, cry every time have to go over statements. Hate that Andrew was hurt."
The applicant expressed remorse in her submissions and concluded that she was "truly sorry and remorseful", knowing that the victim has suffered both physically and mentally from the incident.
The applicant relied on what she had told Ms Clout of her attitude towards the offence. Ms Clout recorded that the applicant said that she was "absolutely mortified" about what happened, and was "very upset" when she found out that the victim had a stroke. The applicant reported that she was shocked by her own behaviour as she is not a violent person and said she was sorry that the victim has suffered permanent injury as a result of what had happened.
Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act relevantly provides: "The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: . . . (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), . . ."
As referred to above, the sentencing judge found that the applicant's account to Ms Clout about the circumstances of the offending was false. In particular, his Honour rejected the applicant's version that she had only kicked the victim once as untrue as the CCTV footage showed several kicks. In accordance with this finding his Honour regarded the applicant as having attempted to minimise her conduct. Although the sentencing judge accepted that the applicant had expressed remorse for her actions his Honour was not satisfied that she had accepted responsibility for her actions. Moreover, the applicant did not give evidence or otherwise "provide evidence" that she accepted responsibility for her actions. As remorse is a mitigating factor, the onus lay on the applicant to prove it on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. She failed to discharge the onus. This ground has not been made out.

Alleged failure to take into account the applicant's intoxication (ground 3)

The applicant submitted that she was intoxicated at the time of the offence and that his Honour erred in not taking that matter into account.
The applicant made no mention to Mr Bish, the author of the pre-sentence report, that she was intoxicated at the time, although he noted that she reported a "non-problematic pattern of alcohol consumption". The applicant reported to Ms Clout that on the night of the offence she had consumed approximately six standard drinks in the hours preceding the incident, and described herself as "tipsy" and "mildly intoxicated". She reported that when intoxicated she has a tendency to be less inhibited and more impulsive but had no history of violent or destructive behaviour.
The transcript of the sentence hearing records that no submission was made by the applicant's legal representative about her alleged intoxication. The absence of such a submission is understandable given s 21A(5AA) of the Crimes (Sentencing Procedure) Act, which provides that, in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.
The sentencing judge referred to the issue of intoxication in the remarks on sentence. His Honour noted that there could be no doubt looking at the CCTV footage that the applicant must have known, no matter how much alcohol she had drunk, that she had repeatedly "laid the boot into Mr Mclnnes when he was completely unable to defend himself or protect himself even from the savage kicks that she rendered to him." His Honour, however, ultimately determined that intoxication was a matter of no moment.
For these reasons, in my view, this ground has not been made out.

Alleged failure to take into account the applicant's version of events (ground 4)

The applicant's written submissions to this Court contain a version of the incident which she contended to be "the truth". As referred to above, the applicant, who was represented by counsel at the sentence hearing, did not give evidence. The facts tendered by the Crown at the sentence hearing were not agreed facts. The CCTV footage of the incident from multiple camera angles was played to the Court and the sentencing judge conducted a view of the scene. As referred to above, the sentencing judge rejected the applicant's account which included an assertion that she only kicked the victim once because she desperately wanted him to get up so he would not distance her children from her further. Not only was there no evidence to support the applicant's version (as she did not give sworn evidence) but her version was inconsistent with the CCTV footage. The applicant has not identified any error in his Honour's approach. This ground has not been made out.

Alleged failure to allow a discount of 25 per cent for the plea of guilty (ground 5)

The applicant contended that she should have received a 25 per cent discount for her plea.
Section 22 of the Crimes (Sentencing Procedure) Act provides that, when passing sentence, the court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty or indicated an intention to plead guilty and the circumstances in which the offender indicated an intention to plead guilty and impose a lesser sentence that would otherwise have been imposed. The discount for the utilitarian value of a plea to the criminal justice system is generally assessed in the range of 10-25 per cent. The primary consideration is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] (Spigelman CJ; Wood CJ at CL, Foster AJA and Grove and James JJ agreeing).
At the sentence proceedings the Crown submitted that the discount should be 10 per cent, given the timing of the plea and its utilitarian value. This submission accorded with what this Court said in R v Thomson; R v Houlton. The applicant's counsel submitted that 10 per cent was "the absolute bare minimum" and contended for a greater discount. The sentencing judge allowed a discount of 15 per cent for the plea of guilty, given the saving of time, notwithstanding the lateness of the plea. His Honour made specific reference to the fact that the applicant had also originally been charged with the additional offence in relation to Mr Hancock.
The discount allowed for a plea is a matter of discretion for the sentencing judge: R v Thomson; R v Houlton at [10] and [72]. The discount of 15 per cent allowed by the sentencing judge was open to him in the exercise of his discretion. No error has been demonstrated. This ground has not been made out.

Proposed orders

I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.

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: 24 July 2017

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