Tweeddale v Regina

The conviction appeal 14The appellant was charged on indictment with the following offence contrary to the Crimes Act, s 321(1)(a) to which he pleaded guilty: "That [the appellant] on the 30th day of April 2010, at Cobar, in the State of New South Wales, did offer to confer a benefit on Emma Thomas intending to influence Jay Betcke a person to be called as a witness in a judicial proceeding, to wit, Orange District Court, to not attend as a witness." 15Section 321(1)(a) provides: "321 Corruption of witnesses and jurors (1) A person who confers or procures or offers to confer or procure or attempt to procure any benefit on or for any person: (a) intending to influence any person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena ..." 16An essential ingredient of the offence is that there is an intention to influence a person called or to be called as a witness in a judicial proceeding. 17The s 321(1)(a) charge arose out of a series of text messages the appellant sent to Ms Thomas on her mobile phone. The messages read: "Emma I have a deal for ur bf. Does he want to hear it." "My Dad is willing to give ur bf $5,000 to drop the charge." "What's the go does he want to make a deal." 18Ms Thomas did not respond to any of the messages. 19At the sentence hearing, the appellant gave the following evidence in relation to this purported offence: "Q. And you offered the witness $5,000 is that correct? [A. Yes] [Q.] You said that your father would pay the money but you never spoke to your father did you? A. No. Q. And I think you also told the police that you - I mean you wanted [the] matter not to proceed is that right? A. Yes." 20The appellant seeks to challenge his conviction on the s 321(1)(a) charge on the basis that the plea was entered in circumstances amounting to a miscarriage of justice: the Criminal Appeal Act 1912, s 6. 21The Crown conceded on the appeal that the evidence did not establish the offence as particularised in the indictment and that the plea to the charge on the indictment should not have been accepted. The evidence was that the appellant offered to confer a benefit on Mr Betcke, whereas the indictment charged that the appellant offered to confer a benefit on Ms Thomas. 22The Crown's concession was correctly made. The appeal against conviction should be allowed and the conviction set aside. The question then arises as to what other orders, if any, this Court should make. 23The Crown submitted there was sufficient evidence to establish that the appellant committed an offence contrary to the Crimes Act, s 319, of doing an act with intent to pervert the course of justice. Under that offence, it is not necessary that judicial proceedings had commenced at the time of the commission of the offence. It is sufficient if an accused person, at the time of offering a bribe or inducement or otherwise acting with intent to pervert the course of justice, was apprehensive that s/he would be prosecuted and acted so as to prevent the prosecution: Regina v OM [2011] NSWCCA 109; R v Rogerson [1992] HCA 25; 174 CLR 268; Kalick v R (1920) 55 DLR 104. 24Section 319 is not a statutory alternative count to s 321(1)(a). That offence cannot, therefore, merely be substituted for the s 321(1)(a) offence to which the appellant pleaded guilty. The Crown submitted that the proper approach, in these circumstances, was for the Court to make an order under the Criminal Appeal Act, s 8A that the proceedings before the Magistrate before whom the appellant pleaded guilty, be continued. That section provides: "8A Power of court to order committal proceedings to be continued in certain cases (1) Where a person deemed to be convicted on indictment under section 105 (2) of the Criminal Procedure Act 1986, appeals to the court against the conviction, the court may, either of its own motion, or on the application of the appellant, order that the proceedings before the Magistrate at which the appellant pleaded guilty be continued at a time and place to be specified in the order, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order that those proceedings be so continued than by any other order which the court is empowered to make. (2) Where an order is made under subsection (1), the proceedings before the Magistrate shall be continued in all respects as if the appellant had not pleaded guilty and as if those proceedings had been adjourned by the Magistrate to the time and place specified in the order. Upon the making of the order, the court may, subject to the Bail Act 1978, exercise any power that the Magistrate might have exercised under section 41 of the Criminal Procedure Act 1986, if the order had been an order made by the Magistrate adjourning the proceedings to the time and place so specified, and the provisions of section 41 of that Act apply to and in respect of the appellant. (3) The powers conferred on the court by this section are in addition to any other power conferred on the court by this Act." 25If that course was taken, it would be necessary for the Crown to seek leave to amend the Court Attendance Notice. This course was followed in R v Wilks [2001] NSWCCA 383. In that case, the appellant pleaded guilty to a charge of break enter and steal contrary to the Crimes Act, s 112(1). Similarly to the present case, the evidence did not establish that the appellant had committed that offence. The evidence established that Wilks had committed a lesser offence to which he was prepared to plead guilty. Wilks requested the Court to substitute a plea of guilty for the lesser offence and to proceed to sentence him for that offence. 26The Court (Bell J, Powell JA and Sully J agreeing) held that the Court did not have that power: see the Criminal Appeal Act, s 7(2). The Court considered, however, that the miscarriage of justice which had occurred in the appellant having been wrongly convicted on his plea of guilty was more adequately remedied by an order under s 8A. 27In my opinion, that is the appropriate course to take in this case. The contrary was not argued by the appellant.

The sentence appeal: the reckless wounding offence 28The ground of appeal on sentence is that the sentence was manifestly excessive. I have already referred to his Honour's finding that the reckless wounding offence was one of extreme violence. In sentencing the appellant, his Honour had regard to the following factors. First, the appellant has, as described by his Honour, "a very significant record for offences of violence". In 2007, the appellant was convicted of the offence of maliciously inflict grievous bodily harm. 29In 2008, the appellant was convicted of resist officer in the execution of duty and intimidate police officer in the execution of duty without actual bodily harm. On the same date, the appellant was convicted of assault person with intent to commit a serious indictable offence. He was also convicted of larceny of the sum of approximately $2,000. In respect of this assault offence, the appellant was sentenced to imprisonment for 18 months commencing on 12 May 2010 and expiring on 11 November 2011, with a non-parole period expiring on 11 May 2011. The Crown tendered a fact sheet in respect of this last-mentioned offence. In short, it involved the appellant assaulting his next door neighbour with a baseball bat. 30His Honour considered that the appellant's actions on the night of the reckless wounding offence appeared to be "like the action of somebody who was deranged". His Honour noted that the appellant "claim[ed] to be remorseful for what he did". His Honour was doubtful, however, whether the appellant was in fact remorseful, or whether he was sorry for what he had done because of the predicament he found himself in, facing sentence for another offence of violence. His Honour referred to messages the appellant had posted on Ms Thomas' Facebook page. His Honour considered those messages, particularly the second one in which the appellant boasted of a previous assault or assaults and threatened more, fortified his: "... strong conclusion that in his current mental state [the appellant] is a very dangerous individual indeed and presents a very real danger to the general community." 31His Honour next referred to the need for general deterrence in respect of persons who wielded "broken bottles and glasses against others". In this regard, his Honour considered that general deterrence in this case was of the "utmost importance". His Honour also considered that specific deterrence was of the "utmost importance" because of the need for the appellant to understand that these types of attacks would "bring appropriately heavy sentences". 32His Honour assessed the s 35 offence at the high end of the range in terms of its "objective gravity". His Honour considered that the offence was "far higher than the medium range of objective seriousness". His Honour noted that, as he understood the submission made on behalf of the appellant, it was not contested that the offence was objectively above the mid-range of seriousness. 33His Honour then dealt with the appellant's subjective features. At the date of sentence, the appellant was 20 years of age. His Honour recorded that the appellant had experienced an "unhappy childhood", as his mother habitually used alcohol to excess and sometimes used illicit drugs. She apparently had committed criminal offences. His Honour recorded that the appellant's mother appeared to have been "a violent woman", who "kicked [the appellant] out of his own home at aged about eleven or twelve". Notwithstanding this, the appellant remained at school until 17 years of age and had held a number of jobs in the mining industry. 34According to a Probation and Parole Pre-Sentence Report dated 8 November 2010 tendered on the sentence hearing, the appellant said that, at times, he "experienced anxiety and depression [and] his depression was often exacerbated whilst under influence of alcohol and/or illicit substances". He told the Probation and Parole Officer that he had used steroids to enhance his fitness. He considered the steroids may have contributed to his already aggressive disposition. Under the heading "Anger", the Probation and Parole Officer recorded: "[The appellant] reported having an impulsive and disruptive nature which he admitted that this enraged behaviour would intensify when under the influence of alcohol and illicit substances." 35His Honour accepted as accurate the summary in the Probation and Parole report: "[The appellant] is a young man who appears to have experienced a volatile childhood and upbringing however, continues to have the support of his father. His alcohol and drug abuse have been a significant contributing factor in his offending behaviour. [The appellant's] current period in custody appears to have given him time to reflect on his aggressive and anti social behaviour. However, he will need continuing and appropriate interventions to address and change his destructive and violent behaviour." 36A report of Anna Robilliard, Forensic Psychologist, dated 6 September 2010, was also tendered on the sentence hearing. 37According to Ms Robilliard's report, the appellant had had a motorbike accident when he was about 17 years of age. The appellant reported to Ms Robilliard that, in his opinion, his "behavioural control" had worsened since the accident. He acknowledged that he had "always had an anger problem", but told her: "I get angry a lot faster, especially on alcohol or drugs. Even sober, little things get me wild." 38Ms Robilliard also recorded the appellant's heavy drinking pattern from the age of 15 or 16. 39Ms Robilliard administered psychometric testing to assess the appellant's risk of re-offending and the impact of his traumatic life experiences on him. In respect of the appellant's risk of recidivism, the testing placed him in the "High to Moderate range". She recommended that he undertake programs in custody that focussed on identifying those problems that would put the appellant at risk of re-offending. In relation to the appellant's "Trauma Attachment Belief Scale", which was intended to assess the long lasting effects of traumatic life experiences, his score placed him in the top 1 per cent of the population. Ms Robillard reported: "This indicates a major disruption to beliefs that effect this individual's ability to relate to others in a healthy manner because of symptoms associated with traumatic life experiences that have produced distorted cognitions." 40Under "Recommendations", Ms Robilliard reported: "[The appellant] presents a complex set of problems and needs that will require careful ongoing assessment and treatment. He is conscious of his potential to hurt others and appeared motivated to help himself in order to reduce his risk of reoffending." 41His Honour took into account the appellant's relative youth, but considered that the mitigating effect of that was diminished, because of his record of violent offences coupled with the extreme violence involved in the offence with which his Honour was dealing. His Honour also found the appellant's present mental state was such that he was a danger to other people. 42His Honour had specific regard, pursuant to the Crimes (Sentencing Procedure) Act 1999, s 21A to the likelihood or not of the appellant re-offending and to the prospects of his rehabilitation. As to the former, his Honour was not prepared to find it unlikely that the appellant would re-offend. His Honour considered that "may depend upon the mental stock that [the appellant] takes of himself in custody and what specialists are able to do for him psychologically". His Honour said he was "unable to make any prediction" as to the appellant's prospects of rehabilitation. His Honour said, "I simply do not know". His Honour also took into account the appellant's early plea of guilty and allowed a 25 per cent discount on the sentence that otherwise would have been imposed. 43The starting point for the sentence imposed by the trial judge, before the application of the discount, was close to the maximum penalty for this offence. It is apparent, therefore, that his Honour considered this was not only a high level of objective seriousness, but was almost at the most serious level. This assessment arose in part because his Honour found that Mr Betcke had significant cuts to his face. His Honour's reference to the "horrifying photograph" showing this indicates, in my opinion, that he considered the cuts to Mr Betcke's face were also very serious. The appellant contended, correctly in my opinion, that this finding was unsupported by the evidence. 44The summary of facts to which I have referred made no reference to any cuts to Mr Betcke's face. The only possible material that might have constituted such evidence was the photograph of Mr Betcke in the emergency ward at Cobar Hospital. However, in the absence of any reference to cuts to his face in the agreed statement of facts, being material which appears to have been derived from the hospital records, I am not satisfied that the photograph establishes that Mr Betcke did receive cuts to his face. Rather, the photograph is consistent with Mr Betcke's face having become bloodied as a result of the bleeding from the significant lacerations recorded in the statement of facts. 45It follows, in my opinion, that his Honour erroneously took into account a serious injury to Mr Betcke's face that he had not sustained. Having thus erred in a relevant respect in his assessment of the overall seriousness of the injuries, the question which arises for this Court's consideration is whether any other sentence is warranted in law: see the Criminal Appeal Act, s 6(3).

Appeal against sentence 46In my opinion, in this case, a less severe sentence is warranted in law. I have reached this conclusion, not only having regard to the fact that the appellant was wrongly sentenced on the basis that there were injuries to Mr Betcke's face, but also because I have formed the opinion that the sentence imposed was in any event manifestly excessive. I have not come to this conclusion lightly. Even leaving out of consideration any injury to the face, the attack and the injuries it caused were horrific. His Honour considered that the conduct of the appellant appeared to be "the action of somebody who was deranged". I do not think that description was inappropriate. The appellant himself has recognised that he has an impulsive and disruptive nature and that "this enraged behaviour" was intensified when he was under the influence of drugs and alcohol. 47I also agree with the primary judge that this is a case where general deterrence is of the utmost importance. As a weapon of choice, a bottle is readily available in nearly every social setting where drinks are served. A broken bottle is an extremely dangerous weapon, capable of causing grievous injury and even death. This may be compounded by the heavy use of alcohol and the use of illicit drugs, which invariably accompanies such assaults. It is apparent from the matters that come before the courts that attacks with broken bottles usually occur suddenly, with ferocity and as a result of the most minor of perceived provocations, such as being bumped, or being the recipient of an unsolicited remark. Such behaviour is criminal and is totally unacceptable. The courts are entitled to and should sentence individuals, who engage in such conduct, on the basis that the sentence should reflect an aspect of general deterrence to others. 48The trial judge also considered that specific deterrence in this case was of the utmost importance. There can be no doubt of that. The Probation and Parole Pre-Sentence Report and the report of the psychologist, Ms Robilliard, presents the Court with a concerning, but slightly hopeful picture. It appears from the Pre-Sentence Report that the appellant has some insight into his aggressive and antisocial behaviour. It is also apparent that he has an understanding that he is prone to anxiety and depression. He has a serious drug and alcohol problem. This is all the more serious given his young age. The slightly hopeful aspect of Ms Robilliard's report was that the appellant's frankness about his history of drug and alcohol abuse, as recorded on an inventory measuring substance dependence (SASSI), was a positive indicator for rehabilitation. 49The appellant also has a very supportive father and stepmother and he values their support. He also has proven work skills. He appears conscious of his potential to hurt others and, in Ms Robilliard's assessment, he appeared motivated to help himself so as to reduce his risk of re-offending. However, Ms Robilliard has recommended that the appellant have therapeutic intervention in addition to intervention to address his drug and alcohol problem. 50Notwithstanding the positive indicators for rehabilitation to which I have referred, the trial judge was not prepared to make a finding that there were prospects of rehabilitation. I do not consider that his Honour erred in making that finding. The appellant's prospects for rehabilitation are dependent upon a multitude of factors, but most significantly, the appellant's motivation in the future to undertake appropriate treatment for his various and serious psychological problems. That will require a high level of motivation and persistence on his part. There are indications that he has the former. The latter remains unknown. However, in my opinion, there is hope that over time, the appellant will address his problems and become a contributing member of the community. He has not had any disciplinary offences in jail; he works as a sweeper and has attended such programs as have been available to him. His relationship with his girlfriend has broken down, but, as I have said, his family remains highly supportive of him. 51Having taken all of these factors into account, including the objective seriousness of the offence and the fact that this is the third serious offence of violence committed by the appellant within a relatively short space of time, I remain of the opinion that the sentence was manifestly excessive. Prior to the application of the discount, the sentence imposed by his Honour upon the applicant was approximately 6 years and 4 months, in circumstances where the maximum penalty was 7 years. Notwithstanding the seriousness with which I view the appellant's offending, I consider that relative to the maximum penalty, the sentence imposed by his Honour was manifestly excessive. 52Applying the discount of 25 per cent for the early plea, the sentence at which I have arrived is 4 years and 2 months. For the reasons given by his Honour, there should be a finding of special circumstances. Accordingly, I propose that the appellant be sentenced to a non-parole period of 2 years and 8 months with an additional term of 1 year and 6 months. As the conviction of the s 321(1)(a) count is to be quashed, the non-parole period is to commence on 11 January 2011 and to expire on 10 September 2013. 53Accordingly, the orders I propose are: (1) Appeal against conviction of the charge under the Crimes Act 1900, s 321(1)(a) allowed; (2) The conviction on the charge under the Crimes Act 1900, s 321(1)(a) recorded in the District Court be quashed; (3) Pursuant to the Criminal Appeal Act 1912, s 8A, the proceedings be continued before the Local Court at Orange on the first date available that is convenient to the Court and to the parties; (4) Grant leave to appeal against the sentence imposed in respect of the charge under the Crimes Act 1900, s 35(4); (5) Appeal against the sentence imposed in respect of the charge under the Crimes Act 1900, s 35(4) allowed; (6) Sentence the appellant to imprisonment for a non-parole period of 2 years and 8 months commencing on 11 January 2011 and expiring on 10 September 2013 and an additional term of 1 year and 6 months expiring on 10 March 2015. The first date upon which the appellant is eligible for release is 10 September 2013. 54HIDDEN J: I agree with the orders proposed by Beazley JA in relation to the charge under s 321(1)(a) of the Crimes Act, and with her Honour's reasons. 55I also agree, for the reasons expressed by Beazley JA, that the sentence for the offence of reckless wounding is manifestly excessive. Nevertheless, like her Honour, I regard the offence as a serious one of its kind and I am satisfied that this court should intervene only to a modest extent. That said, I consider that the reduction of sentence proposed by her Honour is inadequate. 56The effect of the orders proposed would be to reduce the sentence and non-parole period by 4 months. In my view, a reduction of at least 6 months is called for. That would be achieved by a starting point of 5 ½ years which, after a reduction of 25% for the plea of guilty, would produce a sentence, rounded off, of 4 years. An appropriate non-parole period would be 2 ½ years. 57As I have said, I consider that the court should intervene at least to that extent. It may be that a somewhat greater reduction would be appropriate. However, as I am aware that I am in the minority on this issue, I express no concluded view about that. 58ROTHMAN J: I agree with the orders proposed by Beazley JA and with her Honour's reasons. 59I desire to make some additional comments on the proposed reckless wounding sentence. Ordinarily, a reduction of 4 months in a sentence of this length, as proposed and with which I agree, would be tinkering. However, the original sentence was fixed, bearing in mind the need to comply with the principle of totality and the sentence that was imposed in relation to Count 1. 60The sentence in Count 1 is no longer relevant and totality no longer features as an applicable principle. Because of the orders to be made under s 8A of the Criminal Appeal Act, the possibility of a conviction under s 319 of the Crimes Act becomes problematic and renders the task in re-sentencing far more complex. 61The maximum sentence under s 319 is 14 years' imprisonment as against the maximum under s 321 of the Crimes Act, which is 10 years. The circumstances of this particular case would not allow, it would seem, a sentencing judge to impose more for a sentence under s 319, than would be appropriate under s 321. Moreover, in the circumstances of this case and its history, no more severe overall sentence would seem appropriate, even if the additional charge were included. 62I have opted for the re-sentencing regime proposed by Beazley JA, because I do not consider it likely that an offence will be charged under s 319, and even if it were, and a sentence were imposed, it is likely, in all the circumstances, that it would be wholly concurrent with the sentence now being imposed.

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