Tan v R

Judgment 1HOEBEN CJ at CL: Offence and sentence On 8 October 2008 the applicant was found guilty by a jury of an offence of inflicting grievous bodily harm with intent to cause grievous bodily harm, contrary to s33(1)(b) of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years and there is a standard non-parole period of 7 years. The offence occurred on 30 September 2007. The applicant was also found guilty of an offence of assault occasioning actual bodily harm committed between 1 and 30 September 2007 upon the same victim, contrary to s59(1) Crimes Act 1900. The maximum penalty for that offence is imprisonment for 5 years. 2On 23 December 2008 the applicant was sentenced by Finnane DCJ as follows: (a) For the offence of assault occasioning actual bodily harm, a fixed term of imprisonment of 3 years commencing 30 September 2007 and expiring 29 September 2010. (b) For the offence of inflicting grievous bodily harm with intent to cause grievous bodily harm, imprisonment with a non-parole period of 6 years, commencing 30 September 2008 and expiring 29 September 2014, with a balance of term of 4 years expiring 29 September 2018. 3The total effective term of imprisonment was therefore imprisonment with a non-parole period of 7 years and a balance of term of 4 years. The earliest date on which the applicant will be eligible for release to parole is 29 September 2014. 4The applicant seeks an extension of time within which to apply for leave to appeal against the severity of the sentence imposed in respect of the offence contrary to s33(1)(b) of inflicting grievous bodily harm with intent to cause grievous bodily harm. That application for extension of time is opposed by the Crown. 5The applicant relies upon the following grounds of appeal: Ground 1: His Honour erred in the way the applicable standard non-parole period was taken into account. Ground 2: In his assessment of objective seriousness, his Honour took into account irrelevant and inaccurate considerations. 6It was common ground between the applicant and the Crown that "Muldrock error" had occurred in the sentencing process in that the sentencing judge had adopted a two-stage approach and gave primary significance to the standard non-parole period by focusing on whether there were reasons for not imposing it. On that issue generally, this judgment should be read with Abdul v R [2013] NSWCCA 247. Factual background to the offence 7The victim came to Australia from Malaysia on a student visa but with the intention of working at the Wild Orchid brothel in Sydney, run by a woman referred to in the proceedings as "Mummy". The applicant met the victim while she was working in this capacity and they formed a relationship. They had been living together for about six months in an apartment in the city when these offences occurred. The applicant is a strongly built man and the victim is a relatively slightly built woman. 8On an occasion during September 2007 the applicant commenced interrogating the victim because of his belief that she was involved in a scam marriage with the son of "Mummy". She denied this. The applicant assaulted her in the context of trying to get information from her. 9The victim's evidence was that he kicked her once in the back. He kept questioning her and she was hit again. He used his closed fist. She was hit to the middle of the forehead and both eyes. It affected her eyes and both eyes were bleeding. He punched her three or four times. He punched her fairly hard with his full force. She was then kicked somewhere in the lower or middle of her back and just below the right shoulder blade. The assault lasted about half an hour. 10Another element of this offence was that the applicant kept asking her questions and said "If you don't tell me the truth I will kill you". He was holding a cleaver for cutting pork when he said that. He hit her on the head with the blunt side of the cleaver. 11The victim did not go to the hospital. She took Panadol and some Chinese medicine because he told her to take medication otherwise he would kill her. After she took that medication, she felt dizzy and had a headache but the applicant took his belt, put it round her neck and pulled her. He was laughing. The belt was very tight and she tried to resist with her hand and kicked him. He held it around her neck for about five minutes. The applicant then put a small wet towel on her face and continued to laugh. He kicked her in the back again. These were the matters which formed the basis of the applicant's conviction for the offence of assault occasioning actual bodily harm. 12The victim's evidence was that on the evening of 30 September 2007 the applicant again assaulted her, following further argument about the same issue. She said that when he hit her it was painful and blood was coming out of her eyes. She fell to the ground. He lifted a clothes-stand made of steel and hit her with that on her shoulder. He hit her with the knuckles of a closed fist, first to the left eye which was not very painful, but after that on the right eye. He punched her once to the left eye and three times to the right eye with his full force. Her vision was not good, it was blurred, there was bruising and her eyes were swollen so it was very hard to see. 13She was taken to hospital that night. She had an operation on her right eye on 8 October 2007. She could not see well because of the bleeding and bruising and her eyes were half closed. After the operation, she attended for a regular check-up every month and at the time of trial, her eyes had recovered. 14The victim was cross-examined about a statement which she gave to a police officer on the night of 30 September 2007 at the hospital. That statement, which was confirmed by her in cross-examination, was to the effect that the applicant hit her many times to the face, kicked her and hit her with a belt, beat her earlier that night for an hour, had been beating her for two weeks and that she was in a lot of pain. 15Evidence was given by Dr Tybell from the Emergency Department of Sydney Hospital as follows: "Allegedly struck by fist to face, chest and neck. Patient stated previous assault by assailant approximately one week ago. On examination a very swollen right cheek and pre-ocular region with some old discolouration. Moderately swollen left cheek with some old discolouration "bruising". Abrasions linear and bruising to neck. Abrasions "linear" and contusions to anterior chest wall." 16A CT scan showed bilateral orbital floor fractures with soft tissue in right fracture. The doctor explained what this meant in lay terms: "Basically the orbital floor is the rim on which your eyeball and muscles and the fat that surround it sort of sit more or less. When you get breakage of that it can be called blow-out, which means some of the tissue can go through the crack or the piece that's in the bottom of the floor ... if you could imagine there's a hole in the roof, that actually drops down because of a compressive force and you end up with some of the tissue that exists here sliding down into the gap that's created". 17The doctor said that the injuries to each eye were consistent with each eye being struck separately with a fist. Each injury would require "a significant amount of force and quite a heavy blow to break those bones in general and particularly with the right eye where there was the blow-out fracture and the floor was depressed". The doctor said that it would take significant force to do that. 18In her Victim Impact Statement, which was before the court, the victim said: "Since the incident I have been in constant pain. I have not been able to eat or sleep well. I have nightmares about the applicant constantly. I feel so scared for my safety that I can't leave home. Even now I can't sleep some nights from constantly thinking about what [the applicant] had done to me ..." 19These were the matters which formed the basis of the offence of inflicting grievous bodily harm with intent to cause grievous bodily harm. 20After the incident of 30 September 2007 the applicant walked the victim to her place of work and facilitated the police being contacted. The applicant was saying, however, that it was one of the bouncers at the Wild Orchid who had caused the injuries, not himself. When police arrived shortly after 7.50pm and saw the victim they drove her to Sydney Hospital. Applicant's Subjective Case 21The applicant's subjective case was as follows. He was born in 1975, being aged 32 at the time of the offences and 33 when sentenced. He was born in a small village in Malaysia. His father died when he was aged 3 and he grew up in impoverished circumstances with his mother, stepfather and three brothers. He was not schooled past primary school level because of lack of money. He had jobs in restaurants, on construction sites and manufacturing bicycle tyres. The applicant said he was beaten by his stepfather and left home at age 15. 22The applicant had no previous convictions in Australia. He said that he was addicted to drugs as a young man and on two occasions in Malaysia was gaoled for 12 months for using "ice". It was not clear whether he had engaged in drug use in Australia. 23The applicant arrived in Australia on 6 April 2006. Although arriving on a three month tourist visa, he intended to work. He overstayed his visa because he wanted to earn some money. He worked in Victoria as a fruit picker and in Sydney in the construction industry. 24The applicant offered to assist police with information about scams connected with the victim and the brother of "Mummy", involving false passports and false bank statements. There was evidence from a police officer that the applicant had provided some information to police, but they were not taking any further action in connection with it. His Honour took into account as a mitigating factor that he had tried to help the police. Post-Sentence Events 25In relation to events which had occurred after sentence, the applicant appears to have taken advantage of some educational opportunities while in custody, including taking English language and anger management classes. He said that he did not receive any visits from family and that this made him feel depressed. He accepted that he had had a fight with another prisoner in May 2009 and that he had failed urine tests on 11 March 2010 and 12 August 2013. While in custody, the applicant had indicated a willingness to attend the Getting Smart program and was on the waiting list for the Intensive Drug Treatment Program (IDTP). 26The applicant has not expressed any remorse or contrition nor is there any indication of insight into his responsibility for the offences. Background to this application 27After having been sentenced on 23 December 2008, the applicant filed a Notice of Intention to Appeal in respect of his conviction and sentence on 30 December 2008. On 21 October 2009 the applicant was advised that Legal Aid NSW had refused to grant him legal aid to pursue those appeals. 28On 17 May 2013 Legal Aid NSW advised the applicant that his case had been reviewed and he was invited to complete a further application for legal aid, based on "Muldrock error". In due course the applicant did so which has resulted in this matter coming before the Court. 29Although the parties accepted that "Muldrock error" had occurred, the Crown did not accept that, pursuant to s6(3) of the Criminal Appeal Act any lesser sentence to that imposed by his Honour was warranted in law. Delay 30The sentence was imposed on 23 December 2008. The Notice of Intention to Appeal of 30 December 2008 lapsed. Accordingly, an extension of time of about 4½ years is sought by this application for leave to appeal against sentence. 31The competing submissions in relation to delay, finality and the Court's consideration of those submissions are set out in Abdul v R at [31] - [53]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 32The extent of the delay is substantial and the explanation for it is not compelling. Having considered the circumstances relating to the applicant's sentence, Legal Aid NSW rejected his application as having insufficient prospects of success. The only change to those circumstances is the decision in Muldrock. The principle of finality stands against an extension of time, as does the potential for further psychological suffering by the victim. 33In those circumstances, the re-exercise of the sentencing discretion to determine whether "substantial injustice" would follow if an extension of time were not granted, is determinative. None of the other factors identified in the decided cases favour the granting of an extension of time. Ground 1: His Honour erred in the way the applicable standard non-parole period was taken into account. Ground 2: In his assessment of objective seriousness, his Honour took into account irrelevant and inaccurate considerations. Submissions 34The substantial issue in this matter is whether material error having been established, this Court should in the re-exercise of the sentencing discretion, impose a lesser sentence because a lesser sentence is warranted in law (s6(3) of the Criminal Appeal Act 1912 (NSW)). In accordance with Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 the Court is to re-exercise the sentencing discretion afresh, taking into account all relevant statutory requirements and sentencing principles. That is not to say that the findings of the sentencing judge are to be ignored but the applicant does not have to establish that the sentence was manifestly excessive before this Court can consider whether a lesser sentence is warranted. In re-exercising the sentencing discretion, the Court may have regard to evidence of post-sentence events (Douar v R [2005] NSWCCA 455; 159 A Crim R 154). 35The sentencing judge assessed the objective seriousness of the offence at above mid-range. The applicant submitted that this assessment of objective seriousness was excessive because the injuries sustained by the victim were not particularly serious and because his Honour had made factual errors when recording the circumstances relating to the offence. 36The applicant submitted that while the injuries may have been potentially serious, the victim had fully recovered from them by the time of the trial. He submitted that the victim had not been kept in hospital after examination and that the operation which she underwent was not urgent. The applicant submitted that the result of an offender's conduct was a particularly relevant feature in relation to sentences imposed for contraventions of s33. The applicant relied upon the observation of Howie J in R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27] where his Honour said that the nature of the injury caused to the victim would, to a very significant degree, determine the seriousness of the offence and the appropriate sentence. 37In relation to factual errors, the applicant submitted that it was incorrect to say that he had kicked the victim for half an hour and that he had used a long brown belt in that offence. The applicant submitted that it was incorrect to say that the victim's cheekbones were fractured, or that the injury was such as to risk the contents of her eye falling from the eye socket. He submitted that it was incorrect for his Honour to say that unless the applicant had received medical attention fairly quickly, she could have suffered extremely serious consequences and perhaps even died. 38The applicant asked that the Court take into account that no weapon was used and that the offence was not found to have been planned in any way. The applicant submitted that the Court should take into account that he was a man of good character insofar as Australia was concerned and that his conditions of custody in Australia were harsh because of lack of visits or support from family. Consideration 39The factual errors were not as great as submitted by the applicant, although there were some. The victim's statement to the police on the night of the incident referred to her being beaten for an hour, but did not refer to her being kicked for half an hour. That statement also referred to her being kicked during the course of the attack and being hit with a belt. While it was, strictly speaking, incorrect to say that the victim's cheekbones were fractured, the lower part of both orbits were fractured which are contiguous to what is commonly known as the cheekbone. Both cheekbones were swollen. The reference to the "eye falling from the eye socket" was a shorthand way of describing what Dr Tybell said at [16] hereof. It was, however, quite incorrect to say that the injuries were such that they may have caused the victim's death. 40I do not regard these errors to be of particular significance. It needs to be remembered that the judgment was given ex tempore at the conclusion of the sentence submissions. As his Honour appreciated, it was not only the injuries themselves which were of significance, but the circumstances in which they were inflicted. In AM v R [2012] NSWCCA 203 Johnson J (with whom McClellan CJ at CL and Garling J agreed) said: "73 The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention for a s.33 offence: R v Zamagias at [14]. This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 161 at [17]. ..." 41The attack was savage and sustained. Dr Tybell pointed out that a significant amount of force and quite a heavy blow was required to break the orbital bones. It was incorrect to say that no weapon was used in the course of the beating, because the victim was struck with a clothes-stand made of steel. 42The applicant's submissions focused entirely upon the physical injuries received by the victim, but said nothing about the psychological injuries. In her Victim Impact Statement of 8 November 2008 the applicant stated that she had been in constant pain since the incident, had not been able to eat or sleep well and had constant nightmares about the applicant. She said "I feel so scared for my safety that I can't leave home. Even now I can't sleep some nights from constantly thinking about what [the applicant] had done to me. ..." 43The applicant's submissions in relation to the objective seriousness of the offence, made no mention of the maximum penalty for this offence which is imprisonment for 25 years. In that regard, there is some incongruity in the legislature providing that the standard non-parole period for a "mid-range offence" is imprisonment for 7 years when compared with the maximum penalty. In any event, as a result of Muldrock, a sentencing court is not to focus upon the standard non-parole period but is to treat it as a guidepost just like the maximum sentence for the relevant offence. 44In that regard, the observations by Johnson J in AM v R are of assistance: "67 The maximum sentence of 25 years' imprisonment indicates the seriousness with which an offence under s.33 is regarded: R v Zhang at [28]. As Howie J observed in R v Zamagias [2002] NSWCCA 17 at [11], the offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment. 68 The seriousness of s.33 offences is emphasised, as well, by the intention required to commit an offence under the section. Intention to cause grievous bodily harm is the mental element for murder, in the event that the victim died: R v Zoef [2005] NSWCCA 268 at [113]; R v Mitchell at 101 [27]. It is this mental element that makes an individual offender liable to a maximum penalty of 25 years, as opposed to 10 years for a s.35(2) offence of recklessly inflicting grievous bodily harm: R v Mitchell at 101 [27]." 45Finally, an assessment of the objective seriousness of an offence has always been regarded as a discretionary exercise by the sentencing judge. There have been a number of statements by this Court to the effect that the Court should be slow to depart from a sentencing judge's conclusion as to objective seriousness of an offence: (R v Dang [2005] NSWCCA 430; Perry v R [2006] NSWCCA 351; 166 A Crim R 383; Stanford v R [2007] NSWCCA 73; R v Fisher [2008] NSWCCA 103). 46In Mulato v R [2006] NSWCCA 282 Spigelman CJ (Simpson J agreeing) said at [37]: "37 Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." An observation to similar effect was made by Simpson J at [46]. 47I have concluded that his Honour's finding that the offence was greater than mid-range was open to him, even allowing for the inaccuracies in his recitation of the facts. There is no error in that finding. In his assessment of relevant considerations, his Honour entirely omitted the use of the steel clothes-stand to hit the victim during the incident and omitted reference to the abrasions and bruising occasioned to her neck and chest. He made no reference to the importance of the intention element in s33 offences and had little regard to the significance of the maximum penalty. 48In those circumstances, Ground of Appeal 2 has not been made out. 49That does not end the matter. There still remains the application of s6(3) of the Criminal Appeal Act. Since Ground of Appeal 1 has been made out, should this Court in the re-exercise of the sentencing discretion impose a lesser sentence because a lesser sentence is warranted in law? 50In the re-exercise of the sentencing discretion the matters referred to at [12] - [18] remain relevant and have to be taken into account. Both the maximum penalty and the standard non-parole period have to be taken into account as guideposts. The victim's recovery from the physical effects of her injuries favours a lesser sentence. On the other hand, the manner of their infliction, the continuing psychological effects and the intent element of the s33(1)(b) offence point the other way. 51There are some additional considerations. The fact of the earlier assault occasioning actual bodily harm cannot be ignored. It also involved a savage attack on the victim in very similar circumstances to count 2. The sentence imposed for that offence was unaffected by any "Muldrock error". This meant that the s33 offence was not to be considered as an isolated incident, but as part of a course of conduct. This reinforces the need for specific deterrence and general deterrence to be given particular effect in any sentence passed. The s33 offence involves a significant escalation in offending which occurred within the space of a week. 52This Court has said on a number of occasions that domestic violence offences should be treated seriously so as to give effect to considerations of specific and general deterrence (Martin v R [2011] NSWCCA 188 at [13] per Fullerton J (with whom McClellan CJ at CL and Simpson J agreed) and the cases therein cited; Hamid v R [2006] NSWCCA 303; 164 A Crim R 179 at [86] per Johnson J (with whom Hunt AJA and Latham J agreed)). The sentence to be imposed for this offence has to also take into account that the offending took place over a substantial period of time. This was not some reflex reaction on the part of the applicant, but rather a methodical beating inflicted on the victim with the intention of extracting information from her. 53As already observed, no challenge is made to the sentence imposed for the assault occasioning actual bodily harm, nor the level of accumulation between that sentence and the sentence currently under consideration. The sentence imposed for the s33(1)(b) offence is not to be looked at in isolation. The applicant's subjective case is not greatly assisted by events which have occurred following sentence. His major complaint is his isolation from his family because of his incarceration. That, of course, is an inevitable consequence of a foreign national being imprisoned in Australia for offences committed in Australia. 54Taking the above matters into consideration, I am not persuaded that any sentence other than that which was imposed by his Honour is required in law. This is so because of the particular facts of this case which have been reviewed above. 55It follows that to allow the application for leave to appeal against sentence to proceed would have insufficient prospects of success, so as to justify the considerable extension of time which has been sought. No "substantial injustice" would arise if an extension of time were not granted. The order which I propose is that the application for extension of time be dismissed. 56JOHNSON J: I agree with Hoeben CJ at CL. 57BELLEW J: I agree with Hoeben CJ at CL.