Stevens v R

Court of Criminal Appeal (NSW)|2017-08-30|Before: Hoeben CJ, Davies J, Bellew J

Judgment

HOEBEN CJ AT CL: I agree with Bellew J.
DAVIES J: I agree with Bellew J.
BELLEW J: On 28 September 2016 an indictment was presented against Troy Richard Stevens ("the applicant") containing the following counts: 1. On the 25th day of June 2015, at Bondi Junction in the State of New South Wales, caused grievous bodily harm to Francis Noble-Shelton with intent to cause grievous bodily harm (count 1). 2. On the 25th day of June 2015, at Bondi Junction in the State of New South Wales, recklessly caused grievous bodily harm to Francis Noble-Shelton (count 2).
The applicant pleaded guilty to count 2, which was expressed as an alternative to count 1. That plea was accepted by the Crown in full discharge of the indictment. The offending in count 2 was contrary to s. 35(2) of the Crimes Act 1900 (NSW) ("the Act"). The maximum penalty applicable to that offence is imprisonment for 10 years. A standard non-parole period of 4 years is prescribed.
On 21 November 2016 the applicant was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months. He now seeks leave to appeal against that sentence on the grounds more fully set out below.

The facts of the offending

The sentencing judge found the facts of the offending to be as follows (commencing at ROS 3): About 7.30pm on 24 June 2015 he and others went to the Golden Sheaf Hotel, Double Bay. There with friends they socialised and drank alcohol before some drove to the El Topo, E-l T-o-p-o nightclub. They then left there and loitered around the club's entry on Oxford Street and a number of them walked along Oxford Street. At this time the victim and others were walking along Oxford Street. The victim urinated in an alcove between shops while his friends continued walking. Whist the victim was urinating he could hear people laughing behind him. When the victim finished urinating he was involved in a verbal altercation with three persons who were walking past. These were persons who were close in the vicinity. The victim said, "My dick is bigger than all of yours." Priest laughed and said, "Show us." The victim turned around and pulled down his pants exposing his buttocks. Priest then kicked the victim in the leg below the knee. Priest, Hedges, Timoteo, T-i-m-o-t-e-o, and the complainant walked off along Oxford Street. There was an exchange of words and the CCTV shows that the offender steps outside the entrance at El Topo onto the footpath walking along Oxford Street and observing an exchange between the victim and the offender's friends. The victim called out to the friends. The offender suddenly started to jog towards the victim and the offender's friends. Once the offender neared the back of the victim he swung a right-hand punch that landed on the victim's right side jaw. The victim had his back turned and did not see the offender or the punch coming. The force of the punch caused the victim to suffer serious injury. It caused him to lose consciousness and fall unsupported head first onto the bitumen roadway heavily impacting the left side of his head. Thereafter the offender and a person called Anderson had an altercation. Syme then grabbed the offender and steered him away and they ran from the scene. They turned into Grosvenor Street where they met up with Priest, Timoteo and Hedges. They got into a white Range Rover. Security guards followed the group and obtained the vehicle's description and registration. Ambulance and police were called to the scene. The victim slowly regained consciousness and was rushed to St Vincent's Hospital and the police commenced an investigation. As a result of this investigation the offender was identified and at 8.30am on 26 June he was stopped by police whilst leaving his home in Malabar and placed under arrest. Police located a white iPhone in his possession which he admitted was his. On the phone were a number of text messages between him and Priest. The messages were sent onwards from the afternoon of 25 June. They included a text from Priest saying, "If you go to gaol how long do you think you will go for?" The offender responded, "One year." Priest said, "I seen the video footage." The offender responded, "Is it bad?"

The applicant's criminal history

Of particular significance is the fact that at the time of the offending, the applicant was awaiting sentence in the Local Court for an offence of assault occasioning actual bodily harm which had occurred on 17 November 2013. The victim in that case suffered a number of facial injuries including fractures of the nose and eye socket. As with the present offending, the offending in November 2013 happened in a public place, without provocation and in circumstances where the victim was previously unknown to the applicant. The applicant was eventually sentenced on 24 July 2015 to a term of 15 months imprisonment with a non- parole period of 6 months.

The applicant's evidence on sentence

The applicant gave evidence before the sentencing judge which centred upon his efforts towards rehabilitation since being taken into custody following the commission of the offence. He said that he had been employed in custody and had completed a number of courses, including a drug and alcohol rehabilitation course entitled "eCliPSE". He told the sentencing judge (commencing at T6 L32) that at the time of the offending he was under the influence of cocaine but that he had not taken any illicit drugs since entering custody. He expressed his remorse for the offending (commencing at T7.7) and was then asked to recount the circumstances in which it occurred (commencing at T7.45): A. I seen a - between one of my friends, Hayden Priest, and the victim I see them having a push and shove and I - I heard - so I went to go see what was going on and I heard the victim scream out his friends that - about something to do with fighting and then as I've got up to reach them I seen them arguing still. I seen his friends on his way down and that's when I done the - that's when I punched him. Q. When you say you saw a bit of push and shove, what do you say that you saw? A. I seen - I seen a kick and a push. Q. Yes. But when you say you saw a kick, who was it that was doing the kicking? Was it one of your friends or someone else? A. I seen my friend, Hayden, push him away with his foot, yes. Q. Exactly. It was one of your friends that you saw do the kicking. Correct? A. Yes. Q. Now one of the things that you then did - and you're going to need to explain this for us, Mr Stevens - is that there's a suggestion in the facts that you then tried to pick a fight with some other people. Do you remember that? A. Yes. Q. Why did you do that? A. I just thought they were coming to fight us. Q. Right. A. Fight me. That's what I really thought they were going to do. Q. Right. A. So - yes. Q. Now, would you accept that it appears as though you've got a bit of an issue of anger? A. Yes. Q. What have you done about that since you've been inside if anything? A. Inside. I've just stayed away from trouble. I've just - I've trained and just like stay out of trouble, yes, and I - yes. Q. Have you been involved in these situations, fights or anything whilst you've been in custody? A. No. Q. Tell me, what are you plans for the future if and when your released from custody. A. I want to find a job, find someone to help for my anger issues, and just be with my family and really just stay away from trouble and - yes. Q. You understand that there's been an offer made for your employment upon release by Mr Aaron Stevens? A. Yes. Q. And do you indeed to take that up? A. Yes. Definitely.

The applicant's subjective case

Tendered in the applicant's case on sentence were the following documents: 1. a reference from Aaron Stevens, the applicant's uncle; 2. a testimonial from Jason Stevens, the applicant's father; 3. a testimonial from Chris Ingrey, Chief Executive Officer of the La Perouse Local Aboriginal Land Council; 4. a testimonial from John McGuigan, the applicant's godfather; 5. a testimonial from Greg and Tracey Barron, neighbours of the applicant who have known him since birth; 6. a testimonial from Darren John Harbutt, a family friend who has known the applicant for the entirety of his life; and 7. a testimonial from Gregory Diener, who has known the applicant since birth; 8. a report from Megan Godbee, Forensic Psychologist.; and 9. a handwritten letter from the applicant.
The applicant's letter included the following: Please accept my sincere apology for my actions that have put me before you. Though I fully accept there is no excuse for my offending behaviour I hope you will accept my explanation of the circumstances leading up to it. Over the four years before my altercation with Francis Noble-Shelton my life hadn't been smooth sailing and as a result my stress and tolerance were testered (sic) through breaking up with my girlfriend, losing my job and money trouble. Worse of all I turned to alcohol and drugs a bad remedy. All I can say is going through this experience with so much time to think about my life, the damage I have caused has changed me because before I didn't face my problems but chose to ignore them, which made everything worse and turned me into angry selfish person. If I had to describe my life leading up to the reckless incident that has put me before this court it would be self-destructive. I can honestly say I had reached my lowest point.
Having apologised to the victim and expressed his remorse for his offending, the applicant went on to state: When I am released from prison I hope to put all this behind me, to work hard, save money for a home of my own and prove to my family and the community that I have changed and can be a responsible productive person.
The testimonial material tendered on behalf of the applicant was generally supportive of him, particularly as to his efforts towards rehabilitation.
Ms Godbee reported (at [15] and following of her report) that the applicant had given a history that he had commenced to use MDMA at age 17, that he had switched to using cocaine at the age of 21, and that this had continued up until the time of his arrest. She also reported (at [17]) that the applicant had told her that he had suffered from a gambling addiction since the age of 17, in respect of which he was spending approximately $500.00 per week. In terms of the applicant's offending, Ms Godbee said (commencing at [23]): [23] Mr Stevens agreed with the facts as outlined. He stated that he had gone to a club with some of his friends and had consumed a few drinks. After leaving the club, Mr Stevens said that he saw the victim arguing with one of his friends and went to intervene. He stated that the victim then called his friends over, and Mr Stevens said that he panicked because he has previously been "bashed by groups" and wanted to avoid this. He reported that he also thought "I'm on bail, I can't get into trouble" so wanted to make the victim and his friends leave. Mr. Stevens therefore decided to quickly punch the victim before the friends arrived, but said that he did not intend for him to fall and hit his head. [24] Mr Stevens described felling "really bad" for his actions, as he imagines the victim and his family are struggling with the court process even more than Mr. Stevens and his family. He presented with some minimisations, for example saying that he is happy that the victim did not suffer any permanent injuries. It also appears that Mr. Stevens did not consider one punch to be "trouble".
In her psychological assessment of the applicant, Ms Godbee noted the applicant's reported history that he had been diagnosed with depression by Justice Health staff shortly after being taken into custody, and had described experiencing a low mood since the age of 17. However, Ms Godbee did not diagnose the applicant as a suffering from any specific mental illness. In terms of her conclusions she said (commencing at [31]): [31] … [T]hrough repeated conflict with strangers at clubs, it appears that Mr. Stevens became desensitized to alcohol-related violence over time, and he developed minimisations such as "one punch is okay" and justifications ("I was provoked"). [32] Mr. Stevens' index offence was precipitated by general anger towards others, a dismissive attitude that impacted his consequential thinking and a pattern of violence when intoxicated that was facilitated by peer approval as well as the minimisations and justifications above. It appears he held the belief that violence would be an effective way of solving the perceived problem of potentially being assaulted or arrested, which suggests that his problem solving skills had been impacted by stress and his intoxication.
Ms Godbee recommended (inter alia) that the applicant engage in a residential rehabilitation program to manage his behaviour, and that he engage in individual psychological treatment in order to challenge his beliefs supportive of violence, learn skills to manage low mood, stress and anger, and improve his interpersonal skills.
The sentencing judge summarised (commencing at ROS 2) the testimonial and associated material which had been tendered on behalf of the applicant before saying (at ROS 3): Therefore, in summary, before he committed this offence the offender was a person who had support in the community, general good character but marred by some anger problems, an ability to educate himself and obtain and retain employment. He does not come before this Court as someone with a long history of juvenile offences and the matters on his criminal record are few compared to many cases that come before this Court. However, as history shows, a combination of alcohol, drugs, and anger can lead to the unhappy circumstances which place Mr Stevens before the Court today.
His Honour made specific reference (at ROS 6) to the applicant's efforts toward rehabilitation before allowing a 10% discount to reflect his plea of guilty (at ROS 6). He acknowledged (commencing at ROS 8) the "very significant support" expressed by the authors of the character references, and generally accepted the evidence given by the applicant. His Honour observed that the applicant's reference to the "unintentional damage" he had caused was not reflective of the true nature of the offending, but nevertheless found (at ROS 9) that the applicant was remorseful, that he had favourable prospects of rehabilitation, and that he had community support. All of those factors led his Honour to the view that, providing the applicant undertook treatment for his anger management issues, he had "good prospects of not coming before the criminal justice system again".

GROUND 1 - The sentencing judge erred in the appraisal of injury inflicted in the offence

The evidence and submissions before the sentencing judge

The statement of agreed facts which was tendered before the sentencing judge recorded the following in relation to the injuries sustained by the victim: The victim was treated at St Vincent's Hospital by Dr Tim Wang, Plastic Surgery Registrar. On admission the victim was suffering from: Left forehead and Brow laceration with injury to the left temporal branch of facial nerve (paralysis of left forehead muscles) Left frontal lobe haemorrhagic contusion of the brain Minimally displaced medial orbital wall fracture Alcohol intoxication - blood alcohol 0.21% at 25/6/15 20:20 Plastic surgery treatment required: Debridement of left temporal laceration, washout, microscopic exploration of temporal branch facial nerve, wound closure by Dr Ngo (Consultant Plastic Surgeon) and Dr Wang. As the laceration was very distal (close to frontalis muscle, with multiple smaller branches of facial nerve), unable to find a substantial branch of temporal facial nerve to repair under microscopic examination. It was Dr Wang's opinion that the victim, Will have a permanent scar on left forehead with a prolonged period of paralysis of left forehead. May regain some motor function of left forehead in 6 months - 1 year but it will likely not be a complete recovery to the uninjured stated. The victim has reported to his doctor he still experiences sensations above his eyebrow and intermittent headaches which the victim believes stem from this area. The victim reports to suffer from vivid flashbacks, nightmares and rapid mood swings
In the sentence proceedings, counsel then appearing for the applicant addressed the sentencing judge in relation to the extent of the injuries sustained by the victim as a consequence of the offending. The following exchange is recorded (commencing at T14.47): COUNSEL: Now, in this case the injury is a serious injury. To use the language of the authorities dealing with grievous bodily harm, it's a really serious injury. But, nevertheless, it's an injury, in my submission, that falls towards the bottom end of injuries that are encapsulated by the expression "grievous bodily harm". That is a relevant matter for your Honour to consider in determining the objective seriousness of the offending. There is a suggestion that this young fellow may suffer some permanent paralysis to his left forehead area. HIS HONOUR: But we don't know that, do we? COUNSEL: We don't, and the point - HIS HONOUR: Because there is no medical evidence tendered by the Crown. COUNSEL: And the point I was going to make about that - HIS HONOUR: A matter which I will be discussing with the Crown in a moment. COUNSEL: The point I was going to make about that issue, your Honour, aside from the absence of medical evidence in that respect, other than what's agreed in the facts, is that the prospect that his likely to have long-term paralysis could not lead your Honour to a state of satisfaction beyond a reasonable doubt that he would, in fact, have long-term paralysis and, of course, if it's going to be used as an aggravating feature on sentence it needs to be proven beyond a reasonable doubt in accordance with the High Court's decision in Olbrick (sic). So, second, the injury is really serious injury by virtue of the plea and circumstances. It's injury that for the purposes of grievous bodily harm at least falls towards the bottom end of the range of seriousness in terms of injury and that, as I said, is a significant matter. The only point of contention as to an assessment of objective seriousness between the Crown and Mr Stevens seems to be this issue of whether or not there's some scope for the consideration of provocation, at least on some level.
The Crown's written submissions before the sentencing Judge (at [30]) recorded the following: An assessment as to where on the scale of seriousness the present offence falls ought to be undertaken with consideration that the assault involved an unprovoked and unexpected assault on a young member of the community carried out stealthily and with no warning. The offender hit the victim to the head, a vulnerable part of the victim's body. Of relevance is the severity of the injuries. The injuries consisted of loss of consciousness, haemorrhagic brain injury, minimally displaced fracture of the orbital wall and left forehead and brow laceration. Surgery was undertaken to debride the laceration and seek to repair the nerve injury but surgical repair of the facial nerve was not possible.

The reasons of the sentencing judge

The sentencing judge (commencing at ROS 5) summarised that part of the agreed facts as set out at [19] above. Having done so, he said (at ROS 5-6): (sic) Significant feature of that material is the notation that on admission to the hospital when he was treated he had left frontal lobe haemorrhage contusion of the brain. True it is that there are no other medical reports that have been tendered by the Crown and I have to sentence on the basis of the facts that are before me and I do so. I cannot and do not speculate based on any knowledge that I may have of the medical conditions referred to therein that there is anything other than what appears in those documents. Nevertheless, it is quite clear that the injuries that were suffered by the victim in this case were severe. In my opinion, the objective criminality of this case was slightly below mid-range of objective criminality.
His Honour then said (at ROS 7): Although it was submitted that the objective seriousness of the offence fell towards the bottom range of those such offences, I do not agree and find that it is slightly below mid-range. I find that it was very serious injury.
His Honour then said (at ROS 10): This was a cowardly assault on an innocent young man. The assault caused horrific injuries, in my opinion. Whilst the word horrific might be interpreted differently by some, the brain injury that is referred to in the Crown bundle cannot be overlooked.

Submissions of the applicant

Senior counsel for the applicant submitted that the observations of the sentencing judge made it clear that he had given a primacy to the contusion to the victim's brain and had treated it as an injury of considerable seriousness. It was submitted that the evidence did not support the conclusions reached by the sentencing judge in that regard. It was emphasised, in particular, that the evidence did not establish that the brain injury was life threatening, that it required any treatment, that it caused any ongoing symptoms, or that it resulted in any disability.
It was further submitted that notwithstanding his Honour's stated intention to determine the sentence on the evidence before him, it should be reasonably inferred that his appraisal of the seriousness of the victim's injuries "was affected by some understanding of the nature and severity of the injury not established by the evidence in the proceedings". It was submitted, in particular, that the evidence did not warrant the injury being described as "horrific", and that the evidence did not support a conclusion that the offending fell slightly below the mid-range.
Senior counsel further submitted that the conclusion reached by the sentencing judge as to the seriousness of the victim's injuries was an obviously important consideration in assessing the objective seriousness of the offending. He submitted that in all of the circumstances, this Court should conclude that an extraneous consideration had affected the exercise of that discretion by the sentencing Judge.

Submissions of the Crown

The Crown emphasised that there was no dispute that the victim's injuries amounted to grievous bodily harm or, in other words, really serious bodily injury. The Crown also emphasised the nature of those injuries, the treatment which was required, and the ongoing sequelae which had been reported by the victim. The Crown drew particular attention to the fact that the injuries had resulted in permanent scarring and a prolonged period (in the nature of 6 to 12 months) of paralysis of the victim's left forehead, and that complete recovery was unlikely. It was submitted that in these circumstances, and particularly bearing in mind the photographs of the victim and the CCTV footage of the incident, his Honour's description of the injuries, and his assessment of the objective seriousness of the offending, did not reflect error.
In terms of the applicant's submission that the sentencing judge had taken into account extraneous considerations, the Crown submitted that it was evident from the sentencing remarks that his Honour had in fact taken particular care to ensure that he did not, in assessing the objective seriousness of the offending, use any personal knowledge he may have had regarding the nature of the victim's injuries.

CONSIDERATION

In my view, there was no error on the part of the sentencing Judge in his assessment of the seriousness of the injuries sustained by the victim, nor was there any error in his assessment of the objective seriousness of the offending. A haemorrhagic contusion of the brain is a traumatic brain injury. The fact that it apparently produced no ongoing sequelae does not mean that it was not significant. Moreover, it was not the only injury, and the victim has been left with permanent scarring and a prolonged period of paralysis of the left forehead. He also suffers from (inter alia) intermittent headaches, vivid flashbacks, nightmares and rapid mood swings. The injuries were obviously serious and his Honour's conclusions were justified.
Further, the submission that the sentencing Judge "was affected by some understanding of the nature and severity of the injury not established by the evidence in the proceedings" runs completely contrary to what the sentencing Judge actually said. His Honour emphasised, in quite specific terms, that in assessing the severity of the victim's injuries he was not engaging in any speculation based on any knowledge that he may have had of any medical condition to which reference was made in the evidence. There is no reason to conclude that his Honour acted in any contrary way.
For these reasons, this ground is not made out.

Ground 2 - The sentence is unreasonable or plainly unjust

Submissions of the applicant

Senior counsel for the applicant submitted that generally speaking, offences of this nature were "result offences", such that their seriousness generally depended upon the seriousness of the injury inflicted. Whilst senior counsel specifically acknowledged that this was not the sole determinant of the objective seriousness of the offence, he submitted that the injuries inflicted in the present case did not constitute a serious example of grievous bodily harm, and that there was little in the facts and circumstances of the offending, apart from the injury itself, that tended to indicate any higher level of seriousness.
Senior counsel emphasised that the conduct constituting the offending comprised a single act which: 1. was committed without planning or premeditation; 2. did not involve the use of a weapon; and 3. was committed in the absence of any other aggravating features.
In these circumstances, and bearing in mind that the findings of the sentencing judge regarding the applicant's subjective circumstances were largely favourable, it was submitted that a starting point of 5 years imprisonment before applying a discount for the utilitarian value of the applicant's plea was excessive.
In advancing these submissions, senior counsel referred the court to a number of comparative cases which, he submitted, tended to "reinforce the impression" that the sentence imposed in the present case exceeded the boundaries of the proper exercise of sentencing discretion.
In all of these circumstances, it was submitted that a lesser sentence was warranted in law.

Submissions of the Crown

The Crown also referred the Court to a number of comparative cases which, it was submitted, were reflective of the wide ranging circumstances in which this particular offence can be committed. The Crown submitted that an examination of these cases demonstrated that the sentence imposed upon the applicant was within the range of an appropriate exercise of sentencing discretion.
The Crown pointed, in particular, to: 1. the nature of the assault, being an unprovoked and surprise blow to the head; 2. the fact that the blow was executed with sufficient force to cause the victim to fall face first onto the bitumen road, and render him unconscious; 3. the injuries suffered by the victim and their ongoing effect; and 4. the applicant's history of similar offending.

CONSIDERATION

In R v Mitchell; R v Gallagher [2007] NSWCCA 296, the respondents to appeals brought by the Crown against the sentences imposed had pleaded guilty to maliciously inflicting grievously bodily harm within intent to do grievous bodily harm, contrary to s. 33 of the Act. Whilst that is obviously a different offence from that to which the applicant pleaded guilty, a number of observations made by Howie J as to the general nature of this type of offending are apposite. Whilst his Honour observed (at [27]) that an important aspect in sentencing for this type of offending is the result of the offender's conduct, and that the nature of any injury caused to the victim will, to a significant degree, determine the seriousness of the offence and the appropriate sentence, he did not go so far as to say that the result of the conduct is the only consideration to be taken into account. That this is so was emphasised by his Honour in a subsequent decision of R v McCulloch [2009] NSWCCA 94 at [37]. Whilst that was a case of malicious wounding, his Honour's observations remain apposite to the present offending: Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant.
In AM v R [2012] NSWCCA 203 Johnson J reviewed a number of authorities concerning considerations relevant to sentencing for an offence against s. 33(1) of the Act. Again, this was not the offence to which the present applicant pleaded guilty but it remains the case that a number of his Honour's observations are relevant in the present context. Some of the factors which his Honour identified as bearing upon the determination of an appropriate sentence included: 1. the degree of violence and the ferocity of the attack: R v Zhang [2004] NSWCCA 358; 2. the fact that the attack was unprovoked: Matzick v R [2007] NSWCCA 92; and 3. the fact that the attack was perpetrated on an innocent citizen who was going about his ordinary business: R v Woods NSWCCA 9 October 1990, unreported.
In the present case, senior counsel for the applicant emphasised that the offending was not planned or premeditated, that it did not involve the use of a weapon, and that it was constituted by only one punch. All of that is correct. At the same time, the degree of violence was high. The one blow which was struck, about which the victim had no forewarning, was sufficient to cause him to immediately fall to the ground and strike his head. He was rendered unconscious. On the facts found by the sentencing Judge (which were not challenged by the applicant on the hearing of the present application) the attack was entirely unprovoked. Whilst there had been some exchange between the victim and the applicant's friends a short time earlier, the fact remains that the attack was perpetrated on the victim at a time when he was walking down the street completely defenceless, essentially minding his own business, and in circumstances where the respondent had to run after him in order to strike the blow which felled him.
I have had regard to the authorities to which the Court was referred by senior counsel for the appellant and by the Crown. It might be said that the sentence imposed upon the applicant was stern. However, for the reasons outlined, I am unpersuaded that the sentence was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54.
For all of these reasons this ground is not made out.

ORDERS

I propose to the following orders: 1. Leave to appeal is granted. 2. The appeal is 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: 06 September 2017

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