Grounds 2, 3 and 8 : Error in Sentencing for the Offence under s 33(1)(b) of the Crimes Act and Error in the Assessment of Objective Gravity.
14Before passing to the Judge's remarks on sentence, it is pertinent to note that the applicant's submissions were framed in terms of the current form of the offence under s 33 of the Crimes Act . Despite the applicant's reference to s 33(1)(a) and (b) of the Crimes Act , it is important to appreciate that the applicant was charged and convicted of an offence committed on 27 May 2006, when s 33 appeared thus :-
Whosoever:
maliciously by any means wounds or inflicts grievous bodily harm upon any person, or
maliciously shoots at, or in any manner attempts to discharge any kind of loaded arms at any person,
with intent in any such case to do grievous bodily harm to any person, or with intent to resist, or prevent, the lawful apprehension or detainer either of himself or herself or any other person,
shall be liable to imprisonment for 25 years.
15It was not until 15 February 2008 that a drafting amendment took effect, so that the elements of the offence were separated :-
(1) Intent to cause grievous bodily harm
A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person,
with intent to cause grievous bodily harm to that or any other person is guilty of an offence.
Maximum penalty: Imprisonment for 25 years.
(2) Intent to resist arrest
A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person,
with intent to resist or prevent his or her (or another person's) lawful arrest or detention is guilty of an offence.
Maximum penalty: Imprisonment for 25 years.
16On the hearing of the appeal, the applicant's argument consisted of two propositions. The first was that if the Judge in fact sentenced for the offence of inflicting grievous bodily harm with the intent to cause such harm, the assessment of the offence as "at least mid range" in terms of its objective gravity was wrong, because a fracture to the arm is at the bottom of the range of injuries usually associated with grievous bodily harm : see Haoui v R [2008] NSWCCA 209. The second proposition was that, assuming the Judge sentenced the applicant on the correct offence (wounding), his Honour was not entitled to take into account the fracture to Mr Butler's arm for the purposes of assessing the objective gravity of the offence, and a sensible reading of the remarks leads to the conclusion that his Honour fell into error in that regard. The applicant relied upon the reasoning of Howie J in McCullough v R [2009] NSWCCA 94 in support of this latter proposition.
17I turn to the Judge's remarks. They were prepared for delivery at Sydney District Court four months after the offenders' conviction at Coffs Harbour. All three offenders were sentenced at the same time.
18The Judge began his remarks by noting that the jury convicted the applicant and his co offenders of the offence of malicious wounding with intent to do grievous bodily harm. Following a brief reference to the facts of the offences, the Judge noted that the injuries to Ms Lee were "painful but not serious, whereas the injuries to Mr Butler's arm and finger required operative treatment and other wounds to his head and neck were sutured." The Judge referred to scarring, a permanently damaged finger and the fact that a steel plate was inserted into Mr Butler's arm.
19Before turning to a detailed account of the circumstances of the offences, the Judge said :-
In my opinion, the first offence is at least an offence of midrange seriousness, since it involves a violent attack on two people who were occupying a house and who were largely defenceless and this attack left one of the victims with severe injuries, and some permanent disabilities.
20After recounting the facts, the Judge observed that the applicant
alone was responsible for the broken left arm, and he is deserving of greater punishment than Mr Davies, or Ms Castle. They did not know nor directly encourage the applicant to strike the blow against Mr Butler that broke his arm.
21The Judge made some favourable findings, namely that he could not be satisfied beyond reasonable doubt that the applicant and Davies entered the house with the intention of assaulting Mr Butler with the implements they carried. The Judge found that it was just as probable that they went into the house carrying the implements in the belief that they might be able to intimidate Mr Butler. Further, the Judge noted that all three offenders were under the influence of alcohol and were behaving aggressively and irrationally.
22The Judge also found that when
Davies appreciated that they had smashed the right middle finger of Mr Butler, he realised things had gone too far, and he left. The fact that [the applicant] subsequently, and at a time when Matthew Butler was exhausted and wounded, attacked him further, and without warning, smashing his arm, shows him to be vengeful, mean-spirited and cruel.
23In response to a submission that a sentence of less than full-time custody might be imposed on the applicant and Davies, the Judge said :-
the sentences on both men must be sentences of full-time custody because the seriousness of the offences requires this. It is important that they be deterred in the future from committing acts of violence and it is important that others who might have such inclinations realise that even prior good character and family responsibilities will not save them from full-time imprisonment if they commit acts of violence like these. It is also important to fix sentences that are appropriate to the seriousness of the offences. That requires that I pay careful attention to the fact that the principal offence has a standard non parole period of seven years imprisonment and a maximum penalty of 25 years imprisonment.
24The Judge then dealt with the subjective circumstances of Davies and the applicant. In the course of outlining the applicant's background, the Judge expressed the opinion that the events on the night of the offences demonstrated that he had a problem with anger, that he was disposed to be violent and "almost merciless". The Judge found no satisfactory evidence that the applicant was genuinely remorseful, "although he is prepared somewhat grudgingly to accept that he did commit these offences."
25Next, the Judge went on to refer to the DNA evidence in support of the Crown case that serious injuries were inflicted on the night in question. This observation was made in response to the applicant's evidence at trial, namely that he did not have a club with him at any stage, that he did not strike Mr Butler and that Mr Davies was not present. His evidence at trial also denied that he had dragged Ms Lee through broken glass.
26The applicant relies in particular upon the following comments, namely,
the attacks that [the applicant] and Davies made on Matthew Butler, up to and including the crushing of Mr Butler's right little finger could at best, for him, be regarded as a violent attempt to evict Mr Butler. However, his subsequent attack on Mr Butler as the latter was leaving the home, in which he deliberately broke his arm, could only be viewed as a savage and cowardly attack on a completely defenceless and already severely injured man.
..............................................................................
The acts of violence which [the applicant] did and especially the attack on Mr Butler which broke his arm require [the imposition of a sentence of full-time custody]. Anybody in a house is entitled to expect that there will be no invasion of that house, except in accordance with law and all citizens are entitled to expect that they will not be attacked violently and subjected to serious injury.
27At the very end of the remarks on sentence, the Judge set out in sequence the sentences to be imposed on each offender under the headings of the relevant offences. It was here that the Judge referred to the malicious infliction of grievous bodily harm with intent to cause grievous bodily harm. This was an error that was made in relation to each of the three offenders.
28I am not persuaded that the Judge sentenced the applicant otherwise than for the offence upon which he was convicted. The correct offence is named at the outset of the remarks and every reference to "the offence" thereafter must be taken to refer back to that departure point. There was no reference to the infliction of grievous bodily harm with intent to cause such harm until the Judge came to impose sentence. The slip was no more than the nomination of the offence in a heading. I would not regard a heading as the critical determinant for the basis of sentence. Accordingly, the first limb of the applicant's argument fails.
29The second proposition advanced by the applicant is more problematic. It raises issues similar to those dealt with by this Court in McCullough , Wilkins v R [2009] NSWCCA 222 and Bourke v R [2010] NSWCCA 22. In Bourke , McClellan CJ at CL (Price and RA Hulme JJ agreeing) explained his reasons for rejecting a submission that, where the offender was charged with malicious wounding, an injury amounting to grievous bodily harm must be disregarded in assessing the objective gravity of the offence :-
48 In McCullough the offender was charged with an offence contrary to s 35 of the Crimes Act pleaded as the malicious wounding of a person, being the offence identified in s 35(1)(a). During the course of a sustained assault the victim was wounded but also suffered a fracture to her wrist, which was unrelated to the wounding and objectively more serious. This Court held that the sentencing judge was not entitled to take into account the injuries constituting the infliction of grievous bodily harm which were more serious than the wounding. The principles defined by the High Court in R v De Simoni (1981) 147 CLR 383 confined the facts which were relevant when sentencing for the wounding offence.
49 The form of s 33 of the Crimes Act is different to that of s 35 and it is arguable that whether the victim's wounds constitute wounding or grievous bodily harm is not significant, provided of course that the seriousness of the injuries are appropriately recognised when determining the seriousness of the offence in the sentencing process. Whether charged as malicious wounding with intent to inflict grievous bodily harm or maliciously inflicting grievous bodily harm with intent so to do, there may be one offence although the relevant facts, including the injuries inflicted in a particular case, must be reflected in the sentence which is imposed.
50 A review of recent cases indicates ( McIntyre v R [2009] NSWCCA 305; Barton v R [2009] NSWCCA 285; Wilkins v R [2009] NSWCCA 222; SBF v R [2009] NSWCCA 231; (2009) 53 MVR 438) that the principles discussed in De Simoni have on occasion proved difficult to apply. Their essence is that an offender must not be sentenced for an offence with which he or she has not been charged and convicted. If by reason of the facts of a particular case an offender could have been found guilty of an offence carrying a greater maximum penalty than that for which they have been charged, the facts which would constitute a finding of the more serious offence cannot be relied upon when sentencing the offender. If those facts would have made the offender liable for the penalty for the aggravated form of an offence they must be put to one side when sentencing for the offence for which that person has been convicted. These principles were discussed in R v Lawless (unreported, 24 June 1994; NSWCCA Gleeson CJ, Hunt CJ at CL; Blanch J) by Hunt CJ at CL in the context of sentencing for possession of drugs where the facts may disclose that the offender was engaged in a commercial narcotic venture, as opposed to possessing the drugs for his or her own use. His Honour said:
"A sentencing judge may take into account all of the conduct of the prisoner, including that which would aggravate the offence, but may not take into account as matters of aggravation facts established in the evidence which would have warranted a conviction for a more serious offence or which would have rendered the prisoner liable to a more serious penalty than that which is prescribed for the offence of which he has been found guilty."
51 Hunt CJ at CL relied upon the discussions of the relevant principles by Gibbs CJ in De Simoni. At p 389 the Chief Justice said:
"However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
52 At p 392 the Chief Justice said:
"... a judge, in imposing sentence, may not have regard to a circumstance of aggravation which should have been charged in the indictment if it was intended that reliance should be placed upon it. He may, of course, have regard to facts which might ordinarily be described as circumstances of aggravation, but which do not fall within the definition of that expression in the Code, because they do not render the offender liable to a greater punishment."
53 In the present case a statement of agreed facts was tendered. There was no suggestion by defence counsel that the applicant should not be sentenced having regard to the injuries listed in the statement. It includes injuries which are properly described as wounds both to the victim's head and left hand. Those injuries are themselves of such severity that they would appropriately be described as grievous bodily harm. The fractures to the victim's skull and hands, although, because they do not involve a penetration of an internal layer of the skin, would not be described as wounds, are so related to the blows to the victim which caused the wounding that in order to properly identify the extent and consequence of the wounding consideration of the resulting fractures and their consequence was undoubtedly appropriate.
54 It must be remembered that the intent to which the applicant pleaded guilty was the intention to do grievous bodily harm. It is apparent that his Honour had that in mind, but also recognised that the injuries inflicted on the victim included both wounds, and, if considered alone, injuries in the nature of grievous bodily harm. To my mind in the circumstances of this case his Honour was both entitled and, if he was to determine the appropriate sentence, obliged to have regard to the full extent of those injuries. The consequence is not that the applicant has been sentenced for a more serious offence than that for which he was charged or for an aggravated form of the present offence. Furthermore because the infliction of wounds or grievous bodily harm is an element of the offence, the sentencing judge was careful to identify the fact that he was not taking the injuries into account as an additional aggravating factor under s 21A(2)(g) of the Crime Sentencing Procedure Act 1999 (NSW).
55 The present case is of a different character to that considered by this Court in McCullough, where it was held that wounding with which the offender was charged and convicted was unrelated to the injuries amounting to grievous bodily harm to which the sentencing judge had regard when the offender was originally sentenced.
30RA Hulme J expressed general agreement with the Chief Judge, but went on to note :-
62 A significant difference between the facts of McCullough and those in the present case is that in McCullough the injury that amounted to grievous bodily harm (the fractured wrist) was entirely separate and distinct from the wounding. The wrist was not fractured in the course of the infliction of any of the wounds. In the present case, however, there is a direct connection between the various facial and cranial fractures and the wounds that were sustained by the victim. There were four blows inflicted with an axe and a pole which caused all of the injuries. 63 In Wilkins v R [2009] NSWCCA 222 the offence was one of malicious wounding with intent to inflict grievous bodily harm. It was factually similar to the present case. The victim was attacked by a man who delivered a number of blows to his head with a hammer. The injuries included "4 lacerations over the scalp which were bone deep and required 30-40 stitches, a laceration to the left zygoma, a bruise over the left lower chest and ... a small blow out fracture of the maxillary sinus. There was also a fracture of the medial wall of the right orbit" ( Wilkins at [7]). 64 The submission made on behalf of the applicant in Wilkins was that the facial fracture should not be taken into account because the reasoning in McCullough applied as much to an offence of wounding with intent to inflict grievous bodily harm against s 33 as it did to the offence of malicious wounding in s 35(1)(a). The offence was erroneously referred to in the applicant's written submissions as being one against "s 33(1)(a)", implying that the offence was separately described in the section as the wounding offence is in s 35(1)(a). The Crown did not take issue with the applicant's submission and confined its stance to the proposition that the offence was still at the level of objective seriousness that the sentencing judge had found even if the facial fractures were excluded from consideration. In my judgment I accept the uncontested proposition advanced on behalf of the applicant. In the present case, however, the Crown has taken a different approach. 65 Written submissions filed on behalf of the applicant prior to the judgment having been delivered in Wilkins included this:
It appears that his Honour sentenced the applicant on the basis that he caused grievous bodily harm pursuant to s 33(b) (sic) of the Crimes Act , rather than wounding as charged, although in this case little turns on this as the fractures generally appear to be associated with the wounding: cf McCullough v R [2009] NSWCCA 94.
66 The Crown written submissions filed on 25 November 2009 did not take up the point but made reference to all of the injuries sustained by the victim in the context of arguing in support of the findings made by the sentencing judge as to the seriousness of the offence. 67 Supplementary written submissions filed on 3 December 2009 on behalf of the applicant made reference to the judgment in Wilkins in support of a submission that the judge was in error in taking into account the injuries that amounted to grievous bodily harm when assessing the gravity of the offence. This was the subject of some debate at the hearing of the matter on 8 December 2009 and the parties were given leave to file further written submissions on the point. [Hulme J then set out the form of the offences under s 33 and s 35 as they existed pre 15 February 2008]
70 It can be seen that there is a significant difference between the form of the two sections. In my view, in the light of the further submissions that have been made and upon an examination of the terms of the two sections, whilst in the former s 35(1) there are two offences, in s 33 there is but one . It is at least arguable then that in the assessment of the severity of an offence against s 33 it is open to a sentencing judge to have regard to all of the injuries inflicted in the course of the same assault, whether they be characterised as wounding or grievous bodily harm. It is unnecessary to finally determine the point in this case because there is another important feature of McCullough v R that should be noted. 71 In McCullough , the injuries that amounted to grievous bodily harm were entirely separate and distinct from the wound that was the subject of the charge. In the present case there was an extremely close connection between the wounds and the injuries that were inflicted that did not amount to wounding. That is, in my view, a very important point of distinction. In assessing the gravity of such an offence it would be quite artificial to make an assessment of the nature of the assault with disregard to injuries that were inflicted in the course of the infliction of the wounding. 72 This is not a matter that was argued in Wilkins but it was the contention of the Crown in the present case which, in my view, reflects a practical and realistic approach. At the very least, a consideration of the grievous bodily harm that was inflicted upon the victim at the same time as the wounding is necessary for the proper evaluation of the element of the offence in s 33 that elevates it above the offence in s 35, that is, the intention to inflict grievous bodily harm. It is this element that is the primary distinction between the two sections and explains the substantial difference in the maximum penalties of 7 years and 25 years imprisonment. It is a matter of logic that the extent of the harm that was inflicted by the blows that caused the wounding, speaking generally at least, will be one indication of the degree to which the offender harboured the intention to inflict grievous bodily harm. (bold not in original)
31It may be appreciated from the above extracts that a significant factor in Bourke, leading to the rejection of substantially the same arguments as the applicant has pressed upon the Court, was the fact that the relevant grievous bodily harm was inflicted at the same time as, and as a consequence of, the blows causing the wounding.
32Justice Hulme's reference to his judgment in Wilkins is instructive. At [34] and [35] of his Honour's judgment in Wilkins , it was accepted that Howie J's reasoning in McCullough applied and that the De Simoni principle had been infringed. The Chief Judge at Common Law and Davies J agreed with Hulme J. However, it is clear that the Court in Bourke revisited the issue in the light of the Crown's stance in that appeal.
33Given the rationale of the decision in Bourke , there is no basis for distinguishing McCullough in the circumstances of this case. It cannot be said that the fracture of the arm was an incident of the wound to the scalp. The Judge's finding, which was clearly correct, was that the blow by the applicant with the curtain rod that caused the fracture to the victim's arm was independent of the joint assault that caused the wounding. It was not open to the Judge to take into account an injury that was not inflicted in the course of the same assault in order to arrive at an assessment of the objective gravity of the principal offence.
34It appears that this is what the Judge did in the passages set out at [19], [20] and [26]. The references to Mr Butler's "severe injuries" and "permanent disabilities" are capable of applying to the crushed finger, but they are also consistent with the fracture to the arm and the insertion of a steel plate. They could not, in my view, be realistically applicable solely to lacerations to the scalp that required suturing. The Judge clearly singles out the applicant for "greater punishment" on the basis of the fracture to the arm. Had the applicant been separately charged with and convicted of an offence of inflict grievous bodily harm, no issue could be taken with this statement, but the only relevant offence upon which the applicant stood to be sentenced was that committed jointly with Davies and Ms Castle.
35It follows that this aspect of the appeal has been made good. Assuming that the fracture to the victim's arm is put to one side, was an assessment of mid range gravity available on the basis of the findings made at sentence ? On reflection, I think not. Accepting that the offenders went to the premises with the intention of intimidating Mr Butler, and that they were each affected by alcohol, there is a lack of premeditation in the commission of the offence. The nature of the injuries was at the lower end of the spectrum comprehended by grievous bodily harm. As against that, the attack upon Mr Butler was sustained, it involved blows with weapons to vulnerable parts of the body and it was committed in company. On balance, the offence fell moderately below the mid range of objective gravity.
36I note in passing that the Judge's assessment of objective gravity was made in relation to each of the three offenders, despite the Judge's acknowledgment that Davies and Castle could not be held responsible for the fracture to Mr Butler's arm. The parity ground also exposes the flaw in this assessment, given that Ms Castle received a sentence of 2 years imprisonment, which was suspended. Such a sentence is wholly inconsistent with an assessment of mid range gravity, particularly when Ms Castle was the instigator of the offence.
Grounds 4 and 5 : Disparity in the Sentence Imposed Upon Each of the Co Offenders.
37The applicant acknowledged that the suspended sentence imposed upon Ms Castle was inadequate and that it could not be justified by the fact that she did not physically assault the victim or by the fact that she had the care of a young child. In my view, the Crown Prosecutor's concession during sentencing submissions that a non custodial penalty was available for Ms Castle was inappropriate. In those circumstances, the applicant has no legitimate sense of grievance with respect to the penalty imposed on Ms Castle.
38In the light of the conclusion I have reached in relation to grounds 2, 3 and 8, the applicant has a legitimate sense of grievance, having regard to the sentence imposed upon Davies. There was nothing about their respective roles on the night of the offence that could meaningfully distinguish between their culpability for the malicious wounding offence. Their respective subjective circumstances did not justify any significant distinction. Mr Davies had two prior convictions for offences of violence in respect of which he received bonds. The applicant's criminal history consisted primarily of dishonesty offences.
39Mr Davies received a non parole period of 2 years and 6 months, with a balance of term of 18 months. The applicant ought receive the same sentence for the corresponding offence, notwithstanding that it is, in my view, a lenient sentence.
40Significantly, the sentences imposed upon Davies and the applicant for counts 1 and 2 on the indictment were made wholly concurrent, despite the fact that each offence was committed against a different victim. Mr Davies received an identical sentence (18 months imprisonment) for count 2, the assault upon Ms Lee jointly committed with the applicant.
Grounds 6 and 7 : Errors in Fact Finding on Sentence.
41These grounds claim that the Judge made findings of fact adverse to the applicant other than on the basis of satisfaction beyond reasonable doubt and that the Judge failed to expose his reasons for these findings.
42A finding of fact said to be adverse to the applicant is a finding of fact in relation to the co-offender Castle. The Judge found that Ms Castle "encouraged what happened on the night of 27 May 2006, but without fully realising the extent of violence, which Adams and Davies were wreaking on Mr Butler". The applicant contends that this is inferentially a finding of fact in relation to his role in the events, which is therefore adverse to him.
43There is nothing in the Judge's finding in this regard that places a greater degree of culpability on the applicant than was otherwise justified by the evidence that the applicant properly concedes was available for the purposes of sentence, as a consequence of the finding of guilt against the applicant. To the extent that the Judge made favourable findings in relation to the role of Ms Castle, there is no basis for assuming that the Judge attributed a greater corresponding degree of criminality to the applicant.
44The applicant also contends that there was a failure to expose the Judge's reasoning for a finding that, before assaulting the two victims, the three offenders drove to the home of Ms Lee and threatened her son and his girlfriend and a finding that the clubs used in the attack were in the car in which the offenders arrived at the house.
45This latter complaint ignores the context within which those remarks were made. The Judge was clearly referring to the evidence given at trial, a significant part of which was the background to the relationship between the offender Davies and the victim Ms Lee. In recounting the circumstances of the offences, the Judge outlined that history and the events of the afternoon and evening of 27 May 2006. The evidence in relation to the visit to Ms Lee's home shortly prior to the commission of the offences was part of that chronology. The applicant does not contend that this finding was not available on the evidence at trial. There is no basis for the submission that the Judge used this finding in any way to aggravate the offences of which the applicant was found guilty.
46The reference to the clubs being carried in the car was a finding that was ultimately to the applicant's advantage. The Judge determined that there was a lack of premeditation in the sense that the offenders had not armed themselves before travelling to the house, in that "it [was] quite possible that these objects were in the car for some time and for some quite legitimate reason."
47Neither of these grounds is made out.
Ground 1 : Manifest Excess
48The Judge fixed the sentence for the assault upon Ms Lee, committed solely by the applicant, to commence 2 years and 6 months after the commencement of the sentences for counts 1 and 2. The effect was to extend the applicant's aggregate non parole period by one year beyond that of Mr Davies, and to extend the aggregate sentence by one year beyond Mr Davies' aggregate sentence.
49On its face, I would not regard that result as manifestly excessive, given the applicant's conviction for three assaults, as opposed to two. In my opinion, the Judge extended considerable leniency towards Mr Davies in imposing a sentence that failed to take account of an assault upon a different victim.
50However, the applicant has established error in the sentencing exercise. That error and considerations of parity require the imposition of a lesser sentence : s 6(3) Criminal Appeal Act 1912.
51The Judge made no finding of special circumstances, yet the aggregate non parole period was three months below the statutory proportion. The Court has received material for the purposes of re-sentencing that establishes that the applicant is progressing well in custody. He is described as a willing worker, extremely polite and well behaved. The applicant has made significant progress in anger management programmes whilst in custody. His prospects of rehabilitation appear more promising than at the time of sentence. For these reasons, a finding of special circumstances is warranted.
52An aggregate non parole period of 3 years, with an aggregate balance of term of 18 months is the least sentence that I consider appropriate to the objective and subjective circumstances.
53I propose the following orders :-
- Leave to appeal is granted.
- Appeal allowed.
- Quash the sentences imposed by Finnane DCJ on 27 March 2009.
- On count 1 of the indictment, impose a non parole period of 2 years and 6 months to date from 27 September 2009, expiring 26 March 2012, with a balance of term of one year and 6 months, expiring 26 September 2013.
- On count 2 of the indictment, impose a non parole period of 12 months, to date from 27 June 2009, expiring 26 June 2010, with a balance of term of 6 months expiring 26 December 2010.
- On count 3 of the indictment, impose a non parole period of 12 months, to date from 27 March 2009, expiring 26 March 2010, with a balance of term of 6 months expiring 26 September 2010.
The applicant is eligible for release to parole on 27 March 2012.
54PRICE J : I agree with Latham J.