Wick v R

Court of Criminal Appeal (NSW)|2017-09-11|Before: Basten JA, Beech-Jones J, Fagan J, Jones J

Solicitors: Mr B Wrench, Murphy's Lawyers (applicant) Mr C Hyland, Office of the Director of Public Prosecutions (respondent) File Number(s): 2014/277161 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 26 August 2016 Before: Syme DCJ File Number(s): 2014/277161

Judgment

BASTEN JA: I agree with Fagan J.
BEECH-JONES J: I agree with Fagan J.
FAGAN J: Brendan Luke Wick appeals against his conviction on a charge of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). On 26 May 2016 he was found guilty by a jury after trial on an indictment in which this offence was charged as an alternative to a more serious count of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act. The two alternative counts were laid in respect of the same incident, which was what is commonly referred to as a "glassing" attack.
The maximum penalty for the offence of which the appellant was convicted is 10 years imprisonment with a standard non-parole period of 4 years. On 26 August 2016 the learned trial judge sentenced the appellant to 4 years imprisonment with a non-parole period of 1 year and 6 months. If his conviction appeal is unsuccessful he seeks leave to appeal against the sentence.

Circumstances of the offence

The Crown case was that the victim, Beau Danaher, was attacked by the appellant whilst socialising with friends at JD's Bar and Grill, Cronulla, in the early hours of Sunday, 21 September 2014. Mr Danaher and a group of four or five of his friends had met at the Royal Hotel in Sutherland from about 7:45 pm on the evening of Saturday, 20 September 2014. They subsequently had dinner together at the Oatley Hotel. At about 11:30 pm Mr Danaher and two friends, all of them aged approximately in their late twenties, proceeded on to JD's Bar and Grill to join other friends and their relatives, of varying ages, who were celebrating a birthday. The group occupied a dining table and some adjoining lounge chairs.
Mr Danaher danced with one of the young women in the group, then returned with her to the table. The appellant had seated himself at the table although he was not known to or associated with any of the other members of the group. Mr Danaher had a brief conversation with him and formed the impression he was "not too happy". Mr Danaher sat next to the appellant at the table during this exchange. Mr Danaher decided to return to the dance floor and leaned on the table as he stood up to do so. Without warning the appellant struck Mr Danaher over the right eye with a glass. Mr Danaher immediately began to bleed, profusely, from a gash in the vicinity of the right eyebrow and "blanked out".
Immediately after the appellant had struck the blow with the glass another member of Mr Danaher's group pushed the appellant to the ground and punched him a number of times. Security staff intervened and escorted the appellant from the premises. He was spoken to by police outside the restaurant shortly afterwards and denied having struck anyone with a glass. He claimed he had been assaulted without provocation.
A recorded police interview was commenced at 8:50 am on Sunday, 21 September 2014. The appellant denied that he had been in an altercation with anyone at the bar-restaurant (Q/A 98) and denied that he had struck anyone with a glass (Q/A 100, 101). He claimed not to recall any physical conflict except being struck by someone else and "covering up" (Q/A 105, 106). He said he did not recall what, if anything, had led to this.

The injuries sustained by Mr Danaher

The following evidence from Mr Danaher himself regarding the extent of the injuries he sustained was not challenged: 1. Five lacerations to his face (described in more detail below) required over 100 stitches. 2. Two of the lacerations (each about 30 mm long, judging from photographs which were in evidence) were located over the right eyebrow angled down across the forehead toward the outer corner of the victim's right eye. 3. There was a laceration from the hairline above the outer corner of the right eye, extending down to that part of the eye. 4. The outer aspect of the right cheek had a laceration extending vertically downward from below the eye, across the cheekbone (for about 30 mm, judging by the photographs). 5. The right eyelid and the surface of the eye behind it were cut. 6. All of these wounds healed, with no long-term damage to the eye itself or to vision. The scars generally resolved but a scar from the hairline down to the outer corner of the right eye remains visible (T 33). 7. A nerve above the right eyebrow was cut and the eyebrow could not be raised until repair of the nerve by microsurgery took effect. Full movement of the relevant facial muscle was restored after one year.
Dr Sjarif, a plastic surgeon at St George Public Hospital, treated Mr Danaher on 21 September 2014 and in follow-up consultations and procedures. His description of the extent of the injuries and of the surgical work required to repair them, again unchallenged, was as follows: 1. There were five lacerations in the vicinity of the right eye and eyebrow. These were "full thickness" and required suturing in two layers to achieve closure. 2. On presentation "there were three likely glass fragments" in the wounds. The wounds were cleaned before closure. This evidence was not followed up or elaborated, either in chief or in cross-examination. Hence the evidence does not show what foreign bodies, if any, were in fact present in the wounds. 3. The nerve which innervates the frontalis muscle, a muscle of the scalp associated with elevating the eyebrow, was damaged. The nerve was repaired by microsurgery. 4. By nine months after the incident the sites of the lacerations had healed well, leaving soft scarring. Full function of the frontalis muscle was recovered.

Application for a directed verdict

At the close of the Crown case the appellant's counsel submitted, in the absence of the jury, that they should be directed to acquit because as a matter of law "the Crown has not produced evidence which is capable of satisfying the jury" that Mr Danaher had suffered grievous bodily harm. Counsel cited Swan v R [2016] NSWCCA 79. In that case the victim was kicked repeatedly by the accused whilst on the ground and suffered a fracture of the left transverse process of the L3 vertebra. That is, a fracture of one of the bony protrusions from the vertebra. Other injuries, in the nature of lacerations, grazes and bruises, were not relied upon by the Crown in that case as constituting grievous bodily harm for the purposes of a charge laid under s 35(1) of the Crimes Act.
The victim was hospitalised for 48 hours. He had difficulty walking for two to three days. After that he experienced pain when walking for a few weeks. He suffered residual pain when lifting for quite some time after the injury was sustained. The fracture was revealed by a Computed Tomography scan on the night of the assault. It was stable without the need for a back brace because the location of the fracture was embedded within muscle which held the broken fragment in place. This fracture did not require surgery or other intervention, the bone knitted in the course of natural healing over six to twelve weeks. There was no long-term impact or functional deficit.
At [54] - [65] Garling J (with whom RA Hulme J agreed) referred to several authorities in which the expression "grievous bodily harm" has been considered. His Honour concluded as follows: [71] To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase "grievous bodily harm": (a) it is to be interpreted according to its natural and ordinary meaning; (b) on its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury; (c) there is no bright-line by which an injury can be classified as really serious bodily injury; it is always a question of fact and degree; (d) not every injury is capable of amounting to grievous bodily harm; (e) only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.
For reasons stated at length at [72] - [77] his Honour concluded that the injury in that case, the features of which I have summarised at [13] and [14] was not "really serious bodily injury". Viewing the judgment on this issue as one of fact and degree his Honour concluded that the jury's finding, inherent in its verdict, that these injuries constituted grievous bodily harm was unreasonable. The verdict was set aside and conviction of a lesser offence was substituted.
Garling J cited Haoui v R [2008] NSWCCA 209 in which a 67-year-old man suffered a subconjunctival haemorrhage of the right eye and a depressed fracture of the right cheek. The haemorrhage was associated with swelling but resolved without treatment. The fracture required surgery to elevate the depressed fragment of the cheekbone to its original position and to insert a titanium plate, measuring about 30 mm by 4 mm, to stabilise the fracture. Without this intervention the depression of the cheekbone would have been a conspicuous alteration of the victim's appearance and would have interfered with the functioning of muscles attached to the bone, causing spasm when the jaw was moved and limiting the extent to which the jaw could be opened. No ongoing pain or other symptoms were suffered after recovery from surgery.
In Haoui Johnson J (with whom McCallum J agreed) said: [162] There is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm. In my view, it has not been demonstrated that the finding of the jury that the injuries constituted grievous bodily harm is unreasonable or cannot be supported, having regard to the evidence: s.6(1) Criminal Appeal Act 1912. It was open to the jury to be satisfied beyond reasonable doubt that the element of grievous bodily harm had been established in this case: M v The Queen [1994] 181 CLR 487 at 493.
In his submissions in support of a directed verdict in the present case the appellant's counsel relied upon evidence given by Dr Sjarif that "the injuries were not particularly serious". That reliance was misplaced. The doctor explained that he was saying no more than that, relative to other injuries which he had been called upon to repair in the emergency department at St George Public Hospital, "this would have been one of the less technically demanding". He gave examples of injuries he had experienced which he regarded as more serious from a medical point of view: a man injured by shark attack and a workman whose face had been cut by a concrete saw. This part of the doctor's evidence was irrelevant to the application of the legal definition of "grievous bodily harm" with which her Honour was concerned.
Her Honour rejected the application and gave reasons, to which it is not necessary to refer. The appellant then presented his own case, which consisted of the evidence of an expert pharmacologist. He did not give evidence himself.

Ground 1 - conviction appeal, sufficiency of evidence of grievous bodily harm

Under ground 1 the appellant does not identify any disputed question about the extent and proper description of Mr Danaher's injuries or about the treatment required in respect of them or the course of the victim's recovery. The ground is not concerned with what facts were proved but with the legal characterisation of those facts. The appellant contends that the verdict is "unreasonable, or cannot be supported" on the basis that, accepting the unchallenged evidence of the extent and description of the injuries and of their treatment and resolution, it was not open to the jury to find that this was really serious harm. In truth that amounts to a question whether, in law, these undisputed injuries could satisfy the Crimes Act concept of "grievous bodily harm", the same question as that which the learned trial judge had to answer when deciding the application for a directed verdict.
I consider the injuries in this case as summarised at [11] and [12] above are sufficient to constitute grievous bodily harm and the jury was entitled so to find. The severity of the tissue damage is evident from the surgeon's description of the lacerations as "full thickness", causing the victims face to be immediately "gushing with blood" (in Mr Danaher's description) and requiring two layers of suturing. The damage to a facial nerve is also significant. Absent repair by microsurgery this would have incapacitated the facial muscle. The fact that a skilled plastic surgeon was readily available and could repair the damage leaving no residual functional deficit and minimal disfigurement does not detract from the seriousness of the bodily harm occasioned.
This was a much more serious combination of injuries than the vertebral fracture in Swan v R, which required no surgery or other treatment and caused only pain and restriction of mobility for a few weeks. It was also more serious than the harm done in Haoui v R, where there was no nerve severance, no rupture to the external tissue of the cheek and no bleeding.
I would reject ground 1.

Ground 2 - sentence appeal

In sentencing the appellant the learned trial judge took into account that he had defended the charge on the basis of conceding that he injured Mr Danaher recklessly, although denying that the result was grievous bodily harm. Her Honour regarded that concession as justifying "some amelioration of the sentence" although the "only possible conclusion" from controlled circuit television footage tendered in the Crown case was that he had struck Mr Danaher.
Her Honour accepted that the injuries inflicted were at the lower end of the scale of possible grievous bodily harm and found that the appellant's level of intoxication would have … affected his judgment but not stopped him from considering the possible result of his actions. Therefore … his degree of recklessness was high.
Her Honour also accepted evidence from the appellant's psychologist that he suffered from depression and a generalised anxiety disorder, both of long-standing. He was 35 years old at the date of the offence and 37 when sentenced. He was employed as a train driver. He had for some years prior to 2014 engaged in binge drinking which he was aware, prior to the offence, "was getting out of control". His record of convictions was consistent with this: on 29 September 2007 and 25 January 2009 he drove with high range prescribed concentration of alcohol and in April 2013 he committed the offence of re-entering licensed premises after exclusion.
By the date when sentence was passed the appellant had commenced, whilst on bail, counselling and support programs in relation to his drinking. His case on sentence was supported by strong testimonials from his mother, an uncle, a long term friend and two work colleagues. The learned sentencing judge accepted that the appellant had expressed genuine remorse. This expression came in the form of a letter from the appellant addressed to Mr Danaher and tendered to the court, conveying regret and apology. The Community Corrections officer who prepared his pre-sentence report assessed him as at a low risk of reoffending and the learned sentencing judge adopted this view. Her Honour considered his prospects of rehabilitation to be good. Special circumstances were found for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), hence the non-parole period of 18 months which is only 37.5% of the overall sentence, half of the statutory default ratio.
Taking these subjective circumstances together with the objective seriousness of the offence it cannot be said that the sentence was manifestly excessive. Making due allowance for different circumstances of offending, different degrees of severity of injury and different subjective features of offenders, her Honour's decision can be reconciled to the sentences passed in other cases to which this Court was referred, where a glass was used as weapon. Namely, Spooner v Regina [2009] NSWCCA 247, Butters v R [2010] NSWCCA 1, Dosen v R [2010] NSWCCA 283 and Blackwell v R [2012] NSWCCA 227.

Orders

I view ground 1 as raising a question of law only for the reasons given at [21] above. I therefore do not consider that the appellant requires leave to agitate it but I would reject it. Accordingly I propose these orders: 1. The appeal against conviction is dismissed. 2. Leave is granted to appeal against sentence. 3. The appeal against sentence is dismissed.

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