Apthorpe v R

[2012] NSWCCA 100

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

APTHORPE v R [2012] NSWCCA 100

Hearing dates:

27/04/2012

Decision date:

21 May 2012

Before:

Basten JA at [1]
Johnson J at [2]
Garling J at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW - Sentence appeal - Affray - Applicant on bond at time of offence - Similar culpability of all five offenders - Error attributing statement during affray to applicant not of substance - Error regarding circumstances of Form 1 offences not of substance - Sentence not manifestly excessive - Four month longer non-parole period to co-offender not marked as clearly unjustifiable - Appeal dismissed

Legislation Cited:

Crimes Act 1900, s 93C, s 117, s 195(1)(6)
Crimes (Sentencing Procedure) Act 1999, s 9, s 32, s 44
Criminal Appeal Act 1912, s 6(3)

Cases Cited:

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Green v R; Quinn v R [2011] HCA 49, 86 ALJR 36
House v The King [1936] HCA 40; 55 CLR 499
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v George [2004] NSWCCA 247
R v Trevenna [2004] NSWCCA 43
Stewart v R [2009] NSWCCA 152
Vuni v Regina [2006] NSWCCA 171

Category:

Principal judgment

Parties:

Phillip Apthorpe (applicant)
Regina (respondent)

Representation:

F Coyne (applicant)
R Herps (respondent)
Matthew Hammond Solicitors (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s):

2010/11444

 Decision under appeal 

Date of Decision:

2011-10-21 00:00:00

Before:

Neilson DCJ

File Number(s):

2010/114442

Judgment

1. BASTEN JA: I agree with the reasons given by Garling J.

1. JOHNSON J: I agree with Garling J.

1. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by his Honour Judge Neilson on 21 October 2011.

1. At the conclusion of argument on the hearing of the application, the Court made the following orders:

(1)   Leave to appeal granted;

(2)   Appeal dismissed.

1. These are my reasons for joining in with the orders made on that day.

Introduction

1. The applicant, Mr Phillip Apthorpe, pleaded guilty before Neilson DCJ to one offence of affray, contrary to s 93C(1) of the Crimes Act 1900.

1. In addition, he asked, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, that two further charges, placed on a List of Additional Charges (Form 1), be taken into account. They were a charge of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act and of larceny, contrary to s 117 of the Crimes Act.

1. The principal offence related to an incident which occurred on 7 May 2010, when the applicant together with four other men, being his brother Graham, Mr Ryan Sloane, Mr Scott Sunners and Mr Jayden Hunter, set upon Richard Drake and assaulted him.

1. Neilson DCJ also had these co-offenders, except Mr Hunter, before him for sentence on 21 October 2011, at the same time as the applicant.

1. The maximum penalty for the offence of affray is 10 years imprisonment. No standard non-parole period applies.

1. The sentencing Judge imposed a total sentence on the applicant of 3 years and 4 months, with a non-parole period of 2 years commencing on 7 May 2010, which was the date upon which the applicant was arrested and bail was refused.

1. He imposed the following sentence on the other co-offenders:

(a)   Mr Graham Apthorpe: 3 yrs 4 months, with a non-parole period of 1 year 8 months;

(b)   Mr Ryan Sloane: 2 years 9 months, with a non-parole period of 2 years;

(c)   Mr Scott Sunners: 2 years 8 months, with a non-parole period of 1 year 4 months.

Facts

1. A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of these facts is set out below.

1. The applicant, at the time of these events, was in a relationship with a woman named Hayley Brewin. There was a history of animosity between the applicant's family and Ms Brewin's family.

1. The victim, Mr Richard Drake, was a close friend of Hayley Brewin's brother, Stephen Brewin.

1. On 7 May 2010, Mr Stephen Brewin and his friend Hayden Perry, attended at the Campbelltown Local Court because of the need to appear there in relation to an incident which had involved members of the Brewin family. Supporters of Mr Brewin and Mr Perry were present.

1. The applicant, and one of his co-offenders, Mr Ryan Sloane, also went to the Campbelltown Local Court to observe the outcome of the matters. At the Court there was some friction between members of the Apthorpe family and the supporters of Mr Brewin and Mr Perry.

1. The victim, Mr Drake, was not involved in attending at Court. He was at work for the whole of 7 May 2010. When work concluded, he drove to a house at Ambarvale to see a friend. Whilst at that property, Mr Perry's mother and another companion, who had been at Campbelltown Local Court in support of Mr Brewin and Mr Perry, arrived at the property and informed Mr Drake of the result of the day's court proceedings.

1. Whilst Mr Drake was talking to these two ladies, a group of males, being the applicant and his co-offenders, approached Mr Drake and the two women. Upon seeing their approach, the two women ran to their car and left the scene.

1. The group of males surrounded Mr Drake. Mr Graham Apthorpe, the applicant's brother, commenced punching him in the face - connecting four or five times. Mr Drake knocked Mr Apthorpe down in retaliation and ran to the apparent safety of the front porch of the house that he was visiting. A number of the attackers chased him and overpowered him and dragged him back into the front yard. There, all of the group, including the applicant, surrounded Mr Drake and began kicking and stomping on him. The assault continued for a sustained period, during which time the victim lay on the ground and tried to protect his head.

1. At one point during the assault, whilst it was continuing, one of the assailants produce a hard object and hit the victim in the face with it, causing damage to his teeth. At another point, he was lifted up from the ground and held by the arms by some offenders, while others of the offenders took turns striking him.

1. The assault by all of the co-offenders continued and eventually the victim lost consciousness. Just prior to that happening, his keys were taken by the applicant. This constituted one of the two offences on the Form 1, List of Additional Charges.

1. The applicant and his brother Graham then proceeded to damage the victim's car, including smashing a number of windows and damaging a number of panels. This conduct constituted the other offence on the Form 1.

1. At the conclusion of the assault, the offenders, including the applicant, fled in the vehicles in which they arrived.

1. The victim was hospitalised for about six days and required several weeks off work. He had a minimally displaced fracture of his right nasal bone, damage to his teeth, extensive bruising to his head, face, chest and shoulders and a ruptured blood vessel within his right eye.

1. The applicant was arrested within a few minutes of the assault ending and charged with the offence of affray. He was not released on bail. He has been in custody since that time.

Applicant's Submissions on Sentence

1. The applicant agreed with the facts set out above. He did not give evidence on sentence. A pre-sentence report from the Probation and Parole Service was made available to the sentencing Judge as was a report of Ms Debbie Case, a psychologist with Duffy Robilliard Psychologists.

1. The Probation and Parole Service report recorded that the applicant was born in September 1988 and accordingly, was 21 years old at the time of the offence.

1. The pre-sentence report indicated that the applicant, who was then 23 years old, had been in a de facto relationship intermittently for eight years and as a result of that union, had two children for whom he was responsible.

1. It noted that he had limited schooling, leaving prior to the completion of Year 10, but since leaving school he had attained a number of certificates and trade qualifications. It also noted his criminal history, the details of which are set out later in this judgment.

1. The case manager concluded:

"Mr Apthorpe presents as an immature, young twenty-three year old who was co-operative throughout the preparations for this report. He appears to have had a supportive and stable family unit throughout his formative years and continues to have the benefit of a supportive family and partner. It is concerning that he did not appear to take responsibility in relation to the offences and his failure to verbalise the impact his actions had on the victim."

1. The psychologist's report of Ms Debbie Case which was prepared shortly prior to the sentencing hearing, in addition to the matters which have already been recounted, although perhaps in some greater detail, concluded with this expression of opinion:

"Presently Phillip is in a relationship with a partner who has also experienced considerable dysfunction and adversity within her family or origin. In response Phillip has acted impulsively and aggressively, culminating in his involvement in the index offences.

On a positive note, Phillip does not suffer from substance dependence and is involved in a pro-social supportive relationship. He has a positive work history, enjoys work and intends on resuming work immediately post release. ...

Phillip appears to have been experiencing symptoms of depression and anxiety since his father's death. In more recent years these symptoms have increased following the death of close friends and his involvement in a serious automobile accident. ...

The results of psychometric testing indicate that Phillip responded in an exaggerated manner. ... Although his profile should be considered with some caution there was evidence of some Schizotypal personality traits and numerous clinical issues including anxiety, dysthymia, major depression and post-traumatic stress disorder which required immediate intervention. ... Phillip's personality style also indicates impairment in his ability to interpret communications and motivations of others. Together with his fear of victimisation, he is more likely to act/react inappropriately."

1. The report concluded by suggesting that the applicant might benefit from ongoing psychiatric or psychological care. It said;

"Phillip may benefit from psychotherapy to address his problematic personality characteristics. In addition to his personality issues his anxiety and dysthmia require immediate intervention. Phillip demonstrated symptoms consistent with Major Depressive Disorder and Post Traumatic Stress Disorder which also requires immediate assessment and treatment."

1. A report from Dr Girgis dealt with the general state of health of the applicant, dealing in particular with orthopaedic injuries arising from a motor vehicle accident.

1. Contrary to the suggestion of the sentencing Judge, none of the expert reports which were tendered diagnosed a bipolar condition.

1. Counsel for the applicant submitted to the sentencing Judge that given the nature of his physical disabilities, the depression which the applicant suffered and the progress which he had made in custody, that it would be appropriate for a sentence to be imposed that did not require him to spend any further period of time in prison and that any non-parole period which was imposed ought to terminate on that day.

Applicant's Criminal History

1. Relevantly, the applicant had, in 2006, been convicted in the Campbelltown Children's Court of the offence of maliciously inflicting grievous bodily harm and of assault occasioning actual bodily harm. In respect of these offences, he received a community service order and a bond.

1. In 2007, the applicant was convicted in the Downing Centre Local Court of assault occasioning actual bodily harm, for which he received a term of imprisonment of 12 months including a non-parole period of 6 months. He was also convicted of an offence of affray for which he received a term of imprisonment of 9 months with a non-parole period of 6 months. The two terms of imprisonment were ordered to be served concurrently.

1. Although he appealed to the District Court of NSW against the sentences that had been imposed and his conviction, the District Court confirmed the conviction and the sentence, but varied the commencement date to 17 September 2007, to take account of the fact that he had been on bail pending the appeal.

1. Whilst those proceedings were taking place, the applicant had been charged with a further offence of assault, which was committed on 4 May 2007. On 1 June 2007, he was sentenced at the Campbelltown Local Court with respect to the common assault. He received a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of 12 months, which bond expired in June 2008.

1. On 19 January 2010, the applicant was dealt with at the Campbelltown Local Court for an offence of stalking/ intimidating intending to cause fear of physical or mental harm. He was convicted and a bond under s 9 was imposed for a 12 month period. This bond expired on 18 January 2011. It was during his period of being at liberty, and subject to this bond that he committed the offence which is the subject of this application.

Remarks on Sentence

1. The sentencing Judge dealt with all of the co-offenders except Mr Jayden Hunter, at the one time. He described the attack, in which the applicant participated, as cowardly and "...the worst affray upon which I have come." He noted that affray was a commonly charged offence.

1. There is no doubt that the Agreed Facts entirely justified the sentencing Judge's description of the attack as cowardly and of the affray being a serious one.

1. In discussing the individual circumstances applicable to the applicant, the sentencing Judge noted, from the pre-sentence report, that the applicant did not have any insight into, nor any comprehension of, the seriousness of his offending behaviour. This was an unsurprising conclusion as the applicant had told the Probation and Parole Officer who prepared the pre-sentence report, that the victim "... got what he deserved".

1. The sentencing Judge allowed a discount of 15 per cent on the sentence by reason of the utilitarian value of the applicant's plea of guilty.

1. The sentencing judge found special circumstances by reason of the need for the applicant to have treatment for his psychiatric condition and because the applicant, during his period in custody prior to the sentence being imposed, had made good use of his time in undertaking courses designed to assist in the success of his rehabilitation.

Grounds of Appeal

1. There are three grounds of appeal relied upon by the applicant. They are these:

(1)   His Honour erred in considering factual matters on sentence which did not apply to the appellant.

(2)   His Honour erred on a parity basis between the sentences imposed on the appellant and Graham Apthorpe.

(3)   His Honour erred in determining a sentence which in all of the circumstances was manifestly excessive.

Ground 1 - Factual matters which did not apply

1. The applicant submits to this Court that the sentencing Judge made a number of factual errors in his Remarks on Sentence.

1. There were two factual errors made in the course of the sentencing remarks by the sentencing Judge. These two errors related to the facts of what had occurred. The errors were made because the Agreed Facts differed slightly between each of the co-offenders. The course of the sentencing submissions did not alert the Judge to that fact.

1. During the course of the imposition of sentence his Honour recited the Agreed Facts with respect to one of the co-offenders, which did not in their entirety, apply to the applicant. Counsel for the applicant drew his Honour's attention to the differences.

1. His Honour then said:

"Counsel for Phillip Apthorpe has now risen to his feet and pointed out that there are some differences between the facts that I have recorded and the facts agreed between the Crown and Phillip Apthorpe, on which Phillip Apthorpe stands for sentence. I have recited the facts from the facts agreed between Graham Apthorpe and the Crown with the significant omission of the matter that I said does not bind Ryan Sloane. Were I to analyse the facts against each accused separately, I might finish passing sentence by Sunday evening. I will recite the facts against Phillip to show in general terms what the offences are, the facts against each of the accused as agreed between each of the offenders and the Crown will be taken separately into account in the passing of the sentence."

1. Although his Honour's words were not as clear as they might have been, it seems to me that what his Honour was saying was that he had used the facts which he had thus far recited, as a general description of the events which had occurred, and that when considering the particular sentences to be imposed upon each offender, he would have regard to the specific agreed facts, to the extent that there was any difference between them and those which he had recited.

1. The recited facts which were said to be erroneous, consisted, principally of two matters. The first was that the sentencing judge attributed to the applicant words to the effect "Get him. Fuck him up", whereas the agreed facts did not identify the speaker of these words. The second were remarks which principally relate to the offence, on the Form 1, of damaging the car.

1. Upon careful consideration, the differences between the recited facts and those to which the applicant agreed, are not significant.

1. Insofar as the facts relating to the affray were concerned, his Honour expressed the view that it was "hard to distinguish the relative culpability of any of the offenders". He did not find that the applicant initiated the affray, which was the impact of the erroneous attribution. Such a finding, if made, was likely to have resulted in a longer sentence than that actually imposed.

1. The second factual error related to the circumstances of the damage and the motor vehicle which was an offence in the Form 1. It is not clear, and I am not satisfied that this error has impacted in any way upon the sentence imposed. His Honour seems to have regarded the Form 1 offences as being relatively minor. He did not discuss them separately.

1. His Honour also found when dealing with Ms Case's report, that the applicant had reported a diagnosis of bipolar condition. The applicant had not been so diagnosed, but his brother had. The sentencing Judge's conclusion is erroneous in this respect.

1. However, the relevance of the applicant's mental health seems to have influenced the sentencing judge's favourable conclusion as to the applicant's prospects of rehabilitation, and a finding of special circumstances for the purposes of s 44 Crimes (Sentencing Procedure) Act. To the extent that the erroneous finding was made, it was used to benefit the applicant in the sentencing judge's views.

1. There is no error of substance here which has affected the sentence.

1. In my opinion, this Ground fails.

Ground 3 - The sentence was manifestly excessive

1. It is convenient to deal with this Ground next.

1. It was submitted that both the non-parole period and the balance of term were manifestly excessive. The submission in large part relied upon statistics from the Judicial Commission of NSW.

1. Based upon those statistics, the applicant submits that at the time of sentencing, the longest total sentence which had been imposed for an affray was 36 months. Yet, it was said the total sentence here was 40 months.

1. As well, the applicant submits that the actual seriousness of the affray, the objective seriousness of the applicant's participation in the affray and the applicant's subjective situation, all combine to demonstrate that the sentence is manifestly excessive.

1. The statistics upon which the applicant relies in this Court, are substantially the same as those provided to the sentencing Judge.

1. This Court has expressed the view on many occasions, that considerable circumspection is necessary in taking into account and relying upon statistics of the kind that the applicant calls in aid of a submission that a sentence is manifestly excessive: R v George [2004] NSWCCA 247 at [48]; R v Trevenna [2004] NSWCCA 43 at [98]-[101].

1. In this case, there is an added complication, which is that the maximum penalty for the offence of affray was doubled from five years to ten years in 2005. The statistics provided span the period of both maximum penalties.

1. Whatever be the factual basis for a submission that this ground is made out, the legal test requires the applicant to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] per Gleeson CJ and Hayne J. In approaching the task of establishing if the sentence is unreasonable or plainly unjust, the context is that there is no one single correct sentence, but the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Vuni v Regina [2006] NSWCCA 171 at [33] per Hoeben J (Tobias JA and James J agreeing); see also Stewart v R [2009] NSWCCA 152 at [16]-[17] per Hodgson JA (Buddin and Price JJ agreeing).

1. The applicant has not, in support of this ground, identified any error of principle or fact which would constitute any of the forms of error identified in House v The King [1936] HCA 40; 55 CLR 499 as the basis for this Court to interfere with the exercise of the discretion of the primary Judge, other than the last - the inference that, by reference to the result, there has been (or must have been) a failure properly to exercise the discretion conferred on the sentencing Judge.

1. It is clear from the limited statistics referred to that the sentence falls outside the highest sentence previously imposed, but by a relatively modest margin. However, the question that remains for this Court is whether the sentence falls within the range of the permissible exercise of the sentencing Judge's discretion.

1. In my opinion, having regard to the factual circumstances and the applicant's subjective situation to which I have referred above, it does.

1. The affray was very serious. It was part of an ongoing dispute between two families. The numbers involved on one side, five, as against a single victim demonstrated that the victim would have been in significant fear for his safety and life. The assaults perpetrated upon the victim continued over a sustained period of time.

1. The applicant had a poor previous criminal history. He was on, and in breach of, a bond at the time of the offence. This is an aggravating factor which must be taken into account on sentence.

1. In my opinion, the applicant has not shown that the sentence imposed was manifestly excessive, that it was "unreasonable or plainly unjust" nor that any lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912.

1. This Ground ought be rejected.

Ground 2 - Error on a parity basis

1. This Ground invokes the parity principle.

1. The applicant confines this submission only to a comparison with the sentence imposed on his brother, Graham. He submits that by reference to the sentence imposed on his brother, the Court ought accept that the sentence imposed on the applicant was such as to give rise to a justifiable sense of grievance.

1. Mr Graham Apthorpe, the applicant's brother, was sentenced to a term of imprisonment without parole of 20 months, with an additional balance of term of 20 months, totalling 40 months.

1. It is to be observed that the head sentence for both Mr Graham Apthorpe and the applicant were the same, but the applicant was sentenced to a longer non-parole period by 4 months, namely 24 months as opposed to 20 months.

1. The applicant submits that having regard to the greater participation of Mr Graham Apthorpe in the altercation, namely, that he commenced the altercation, and threw the first four or five punches to the victim's face, and in addition, that it was Graham Apthorpe who was identified as being principally responsible for the damage to the victim's motor vehicle, there was no reason why they both should have been ordered to serve identical head sentences. It is also submitted that the subjective differences between Mr Graham Apthorpe and the applicant did not justify identical head sentences.

1. However, when dealing with the principal offences of affray, his Honour found that there was little to distinguish the relative culpability of any of the offenders. In his Remarks on Sentence he said:

"With the utmost respect to those who submitted otherwise, it is hard to distinguish the relative culpability of any of the offenders, except to state that Graham Apthorpe commenced the affray."

1. It not submitted that this finding was in error. It is clear that the material before the sentencing Judge amply supported such a conclusion.

1. In order to succeed on this ground, as the authorities demonstrate, the mere existence of a discrepancy is insufficient to warrant intervention by an appellate court.

1. What an applicant needs to establish is that the discrepancy identified is one which is "marked" or "clearly unjustifiable", or "manifest ... such as to engender a justifiable sense of grievance" or else it "[appears] that justice has not been done": Lowe v The Queen [1984] HCA 46; 154 CLR 606, Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; Green v R; Quinn v R [2011] HCA 49; 86 ALJR 36 at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J.

1. The sentencing Judge correctly found that the criminality of all the offenders was substantially the same. Imposing the same head sentence in those circumstances was justified.

1. The applicant's personal circumstances, including his previous criminal record, were sufficient to justify the difference in the non-parole period between his sentence and that of Mr Graham Apthorpe.

1. If anything, the applicant seems to be complaining that his brother, Graham Apthorpe's head sentence ought to have been longer. This is not a proper engagement with the parity principle.

1. I am not satisfied that the applicant has demonstrated that any discrepancy which exists is marked, or clearly unjustifiable. He has not demonstrated that justice has not been done.

1. I would not uphold the appeal on this Ground.

Summary

1. For the reasons which I have described above, I do not think there is any basis upon which this Court ought interfere in this appeal.

1. It is for these reasons that I joined in with the orders of the Court which were made on Friday 27 April 2012; which were:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

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Decision last updated: 22 May 2012