BC v R

[2020] NSWCCA 329

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

BC v R [2020] NSWCCA 329

Hearing dates:

16 September 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Before:

Gleeson JA at [1];
Price J at [2];
Wright J at [185]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – one count of wounding with intent to cause grievous bodily harm – applicant aged 17 at time of offence – disputed facts hearing – whether judge erred in the assessment of the evidence – whether judge misdirected himself – whether applicant discharged the onus of proof – whether applicant’s symptoms of PTSD played a causative role in the offence – whether judge assessed the applicant’s moral culpability – whether error in judge’s finding that the applicant was not genuinely remorseful – whether sentence was manifestly excessive

Legislation Cited:

Children (Criminal Proceedings) Act1987 (NSW), ss 6, 33(1)(b)

Crimes Act 1900 (NSW), ss 33(1)(a), 61

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)

Evidence Act 1995 (NSW), s 38

Cases Cited:

Aslan v R [2014] NSWCCA 114

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; 205 A Crim R 1

Egan v R [2017] NSWCCA 206

Gommesen v R [2012] NSWCCA 226

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 204 A Crim R 434

House v The King (1936) 55 CLR 499; [1936] HCA 40

JB v R [2012] NSWCCA 196

Lloyd v R [2017] NSWCCA 303

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Jasper [2014] NSWDC 116

R v Nguyen [2004] NSWCCA 438

R v Phillip (a pseudonym) [2019] NSWDC 448

R v Thomson; R v Houlton (2000) 14 NSWLR 374; [2000] NSWCCA 309; 115 A Crim R 104

Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38

Skocic v R [2014] NSWCCA 225

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; 103 A Crim R 149

Windle v R [2011] NSWCCA 277

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

BC (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr J Stratton SC (Applicant)
Mr B Hatfield (Respondent)

Solicitors:
Longton Legal (Applicant)
Solicitor for the Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/00332302

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the applicant is prohibited.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 448

Date of Decision:

12 August 2019

Before:

Colefax SC DCJ

File Number(s):

2017/00332302

Judgment

1. GLEESON JA: I agree with Price J.

2. PRICE J: BC (“the applicant”) seeks leave to appeal against the sentence imposed upon him in the District Court by Colefax SC DCJ (“the judge”) on 12 August 2019.

3. The applicant pleaded guilty in the Children’s Court to one count of common assault contrary to s 61 of the Crimes Act 1900 (NSW) and adhered to his plea in the District Court. The maximum penalty for this offence is 2 years’ imprisonment.

4. In the District Court, the applicant pleaded guilty to one further count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act (“the wounding offence”). The maximum penalty for this offence is 25 years’ imprisonment. As the applicant was aged 17 at the time of the offence, the standard non-parole period did not apply.

5. For the common assault offence, the judge allowed a 25% discount for the utilitarian value of the guilty plea. The applicant was sentenced to a fixed term of imprisonment of three weeks, commencing on 2 November 2017 and expiring on 22 November 2017, to be served concurrently with the wounding offence.

6. For the wounding offence, the judge allowed a discount of 10% for the utilitarian value of the late guilty plea and sentenced the applicant to a term of imprisonment of 8 years with a non-parole period of 4 years commencing on 2 November 2017 and expiring on 1 November 2021, with the balance of term expiring on 1 November 2025.

7. The applicant was sentenced to a total effective sentence of 8 years’ imprisonment with a non-parole period of 4 years.

Grounds of appeal

8. The notice of appeal identifies the following grounds:

“Ground One: The learned judge erred in his assessment of the evidence in the disputed facts hearing and it was not open to his Honour to make the findings he did.

Ground Two: The learned judge erred in his assessment of the moral culpability of the offender by not taking into account his psychological condition at the time of the offence.

Ground Three:

(a) The learned judge erred when he took the disputed facts hearing into account when considering remorse.

(b) It was not open to his Honour to find the offender had no remorse.

Ground Four: The sentence was manifestly excessive.”

9. Although the grounds of appeal are broadly drafted, the applicant makes no complaint about the sentence imposed for the common assault.

Procedural history

10. On 21 September 2018 the wounding offence was committed to the District Court for trial. A trial date was set for 13 May 2019. On 7 March 2019, the applicant was arraigned on an indictment to which he pleaded guilty to the wounding offence and a sentence hearing was set for 12 July 2020.

11. Initially the applicant stood for sentence on the basis of an agreed statement of facts (“the agreed facts”) however an issue arose with respect to the applicant’s claim in the Juvenile Justice report that he had seen the victim armed with a screwdriver before he stabbed him. Relevantly the author of the report recorded that:

“[The applicant] advised that he made a decision to pick up the yellow wet floor sign and try and scare the victim off, and the situation would be over. [The applicant] maintains that he saw the victim with a screwdriver in his hand and, believing that he was going to be stabbed, [the applicant] made the decision to stab the victim first.”

12. Differences between the applicant’s claim and the agreed facts may be readily seen by reciting the following paragraphs in the agreed facts:

“8. At this time the [applicant] ran out of the stair case next to the escalators holding a yellow wet floor sign. The [applicant] lifted the sign with both hands, raising it above his shoulder and threw the sign at the victim’s head (charge of common assault (CS1) which the [applicant] pleaded guilty to in the Children’s Court). The victim stepped backwards away from the [applicant] and knocked the sign to the ground.

9. The [applicant] then pulled a large knife out of his pants pocket and rushed towards the victim. The victim moved back away from the [applicant] with his hands up in the air.

10. The [applicant] swung his right arm with the knife towards the top half of the victim’s body. The victim continued to back away from the [applicant]. The [applicant] then swung his right arm again at the victim and stabbed the victim in the victim’s left chest.

11. The [applicant] then ran towards the train station. The victim chased after him. The [applicant] stopped and turned to face the victim. The [applicant] was still holding the knife. Guylian yelled out to the victim, ‘You’ve been stabbed.’ The victim put his hand to his chest and began gasping for air.”

13. As the applicant’s claim was pressed on behalf of the applicant and not accepted by the Crown, a disputed facts hearing was required and the matter was adjourned to 9 August 2019.

14. On 9 August 2019, the disputed facts hearing was conducted before the judge. The Crown played CCTV footage and called five witnesses to testify in its case. The victim did not give evidence. The applicant was the only witness to testify in his case.

Ground 1: The learned judge erred in his assessment of the evidence in the disputed facts hearing and it was not open to his Honour to make the findings he did

15. As Ground 1 of the appeal challenges the factual findings made by the judge it is necessary to detail some of the evidence in the disputed facts hearing.

Evidence of Guylian Coleman

16. In examination-in-chief Ms Coleman gave evidence that she was at Westpoint Blacktown with the victim and Nick Walker on the day of the stabbing. At that time she was the partner of the victim. She agreed that she had lunch with the victim and Mr Walker in the food court before doing some shopping. During this time, there was a “run in” where “some words were exchanged” between the victim and the applicant before she and the victim walked off. Ms Coleman agreed that a short time later she and the victim walked to the forecourt of the shopping centre to catch a taxi to leave.

17. Ms Coleman identified herself in the CCTV footage as being “on the left hand side in the blue jeans and singlet”. She agreed that she was quite close to where it all happened and saw the victim being stabbed.

18. Ms Coleman said that she did not see the victim holding a screwdriver in his hand at any time.

19. In cross examination, Ms Coleman agreed that nowhere in her statement dated 9 November 2017 did she mention seeing a screwdriver, and she denied not telling police about the existence of a screwdriver to protect the victim.

Evidence of Shaun Tomlinson

20. In examination-in-chief Mr Tomlinson confirmed that on the day of the stabbing, he was waiting out the front of the Westpoint shopping centre for some friends. He did not know the applicant or the victim.

21. Mr Tomlinson identified himself in the CCTV footage as wearing a “high-vis jacket on the top right”.

22. Mr Tomlinson agreed that he saw two men having a fight, one of which had a knife. He described the man who had the knife as wearing “a black shirt with Adidas on it and his hair is like a mullet type not tied up”. He described the knife as a “flicky knife”.

23. Mr Tomlinson described the man without the knife (the victim) as being “dressed in the white shirt” and said that he saw him drop two screwdrivers after he was stabbed.

24. The Crown then made an application under s 38 of the Evidence Act 1995 (NSW) to cross examine the witness. In cross examination the Crown suggested that Mr Tomlinson may have been mistaken about the screwdrivers and that it could have been the other person who dropped the screwdrivers. Mr Tomlinson said “I’m not sure, I just seen two screwdrivers drop on the floor”.

25. In cross examination by the applicant’s counsel, Mr Tomlinson was asked to read paragraph 6 of his statement which stated:

“The guy with the knife stuck a knife into the guy in the white t-shirt, the knife went into the guy’s chest on the left lower side, the guy in the white t-shirt dropped two screwdrivers, one blue and one red, I heard the noise of them hitting the ground but I didn’t see where they came from. The guy in the white t-shirt was walking back away from the other guy with the knife.”

26. Mr Tomlinson confirmed that was the best recollection of what he had seen and heard on that day.

27. Mr Tomlinson further confirmed that he told police officers that he saw an older man pick up the screwdrivers and identified that man for police.

Evidence of Khiara Partridge

28. In examination-in-chief Ms Partridge confirmed that on the day of the stabbing she was waiting for some friends outside the front of Westpoint.

29. Ms Partridge identified herself in the CCTV footage as being amongst a group of friends on the top right hand corner “next to [Cignall] and Chemist Warehouse”.

30. Ms Partridge confirmed that while she was there she saw two men having a fight. She said that the man with a shaved head with a long bit of hair at the back was holding a knife in his right hand. She said she “saw him push the chubby guy like once or twice and then he got stabbed and he didn’t notice until after”.

31. Ms Partridge said she remembered the screwdrivers “falling out of the pocket” of “the one with the long hair” when they were pushing each other just before the stabbing.

32. In cross examination, Ms Partridge denied that she could be mistaken about where the screwdrivers came from. She said there was nothing in “the chubby guy’s” hands which she could clearly see.

Evidence of Rheannon Noonan

33. In examination-in-chief Ms Noonan confirmed that she was outside the Westpoint shopping centre waiting for some friends on the day of the stabbing.

34. Ms Noonan identified herself in the CCTV footage as being “over near the Chemist Warehouse where the big group of people are”.

35. She confirmed that after she had met with her friends, she saw two guys fighting in the forecourt area and the “one with the long hair” stabbed the other guy.

36. Ms Noonan said that after he stabbed the victim he ran to the road still holding the knife and dropped two screwdrivers on the footpath. She described the screwdrivers as “little” and said that “one was blue and one was red”.

37. In cross-examination Ms Noonan agreed that when the screwdrivers fell on the ground, the two men were still close together. When asked where she saw the screwdrivers come from, she said “I’m not entirely sure where they came from, I just saw them drop”.

Evidence of Detective Senior Constable Bradley Jorgensen

38. Detective Senior Constable Jorgensen (“DSC Jorgensen”) confirmed in examination-in-chief that he was the officer in charge of the matter. During his evidence, ‘still shots’ of the CCTV footage were tendered.

39. He was asked to read onto the record paragraphs 7 to 10 of the statement of Joel Wolf which stated:

“When I first saw them, they were standing side on to me with the first one to the left. They were facing each other and running at each other and clashing. I saw both punching each other. Then they both ran towards the 7 Eleven about 10 meters and then back towards Chemist Warehouse again.

I saw the second male standing right in front of the first male and he raised one of his hands above his shoulder and bring it down at the first male. I can’t remember which hand it was. From the angle I was at I could not see anything in his hand.

I saw bits of material hit the ground. They looked like plastic or metal I don’t know what they are.

I heard someone saw ‘I’ve been stabbed’ or ‘He’s been stabbed’ I can’t remember if it was a male or female voice.”

40. DSC Jorgensen gave evidence that a man named Vincent Scibberas found a screwdriver in the forecourt area and picked it up. DCS Jorgensen agreed that shortly thereafter, Mr Scibberas approached Detective Megan Oxley, who was assisting at the scene, and told her about the blue screwdriver he had picked up, which he believed may have come from the males in the fight. Detective Oxley collected the blue screwdriver which was later analysed by the Forensic and Analytical Science Service. A mixed DNA profile was recovered.

41. In cross-examination, DSC Jorgensen gave evidence that the CCTV footage was enhanced by forensic imaging to identify the knife with a red circle. He gave evidence that nobody was instructed to enhance the victim’s hands or the area near the feet of the men.

42. In re-examination, DSC Jorgensen was asked to read part of the statement of Christopher Tsinglois, a friend of the victim who witnessed the stabbing. His statement did not refer to any screwdrivers but included the following:

“As I was running towards John I observed a male whom I would describe as being Caucasian in appearance, about 17 years of age, about 5 foot 7 inches tall, medium build, short brown hair with long hair at the back which I will call a mullet, wearing a dark coloured Adidas t-shirt with dark coloured tracksuit paints. I observed this male to reach into his front of his pants and pull out a silver coloured knife. This male was holding this knife in his right hand, this male then ran towards John swinging his right arm towards the upper body of John.”

Evidence of the applicant

43. The applicant was called to give evidence in his case. In evidence-in-chief, the applicant maintained that he was telling the truth when he spoke with his case officer at Juvenile Justice and the psychologist, Emma Hübner.

44. The applicant confirmed it was him in the CCTV footage. He said when he came out of the stairwell, he threw a sign towards the victim and as he let go of the sign, he saw a screwdriver at which point he pulled out the knife and stabbed him. The applicant said as soon as he saw the screwdriver he got scared and that he didn’t see the screwdriver again.

45. The applicant gave evidence he bought the knife at the shopping centre “[b]ecause I thought as soon as I like ran into the victim, I thought if I pulled the knife that was going to like stop me from getting jumped and they would run away.”

46. The applicant was asked about his discussions with the Juvenile Justice officer in relation to work when he came out of prison. The applicant said that his best solution was to do a plumbing apprenticeship with his brother and he understood his brother could employ him.

47. In cross-examination the applicant said that he agreed with everything in the agreed facts except for the screwdriver.

48. The applicant agreed that when he put his hands up into a fighting stance in the shopping centre and said “come outside” he was the aggressor. The applicant maintained however that he was also the victim because “the victim came up to me, he didn’t come up to me to be friends”.

49. The applicant gave evidence that after the confrontation he had a conversation with a friend who said “show, show them the knife and I’ll (sic) run away”. He agreed that he then decided to go and buy a knife to show it to them and run away to prove that he wasn’t weak.

50. The applicant was shown the CCTV footage. He agreed that he went after the victim as he was leaving the shopping centre. He agreed that at all times when the knife was being produced, the victim was backing away from him. The applicant maintained that he believed it was necessary to stab the victim to defend himself and that “[the victim] would have” attacked him. The applicant denied that from the point he had the yellow sign in his hands he intended on stabbing the victim. He said “he was willing to fight but … wasn’t willing to stab”. The applicant maintained that he believed the victim had a screwdriver in his hands and that if he didn’t have it, he wouldn’t have stabbed him.

51. The applicant said “[a]t the end of the day I made a choice to do something and I take full responsibility of that, but I’m saying there’s something that triggered the choice I made.”

Contested facts judgment

52. At the conclusion of the evidence and after hearing submissions, the judge delivered an ex tempore judgment. His Honour noted that BC’s position in pleading guilty to the wounding offence was that he was admitting to “what might be described as excessive self-defence”.

53. His Honour considered that fundamental to this proposition was that BC struck the victim with the knife because he had seen the victim armed with a screwdriver.

54. The judge found that the applicant was not assisted by the CCTV footage or the photographic stills which showed “a rapid series of events occurring in which the victim was leaving the relevant shopping centre, that he was pursued from behind by the [applicant], that the [applicant] picked up a yellow bollard and threw it at the victim and, before the yellow bollard had time to get to the ground, in one swift motion the [applicant] already had that knife out”. Whether the victim was armed with a screwdriver or not was inconclusive.

55. The judge then summarised the evidence of the witnesses called.

56. His Honour noted that one of the witnesses was the girlfriend of the victim (Ms Coleman) and she gave evidence that “she had not seen her boyfriend holding a screwdriver at the time he was stabbed, nor immediately beforehand”.

57. As to Mr Tomlinson’s evidence, the judge said that “[h]e made a statement on the day of the relevant events in which he said that it appeared that the victim had dropped two screwdrivers. But then in the same paragraph of that statement he said he didn’t see where the screwdrivers came from.”

52. As to Ms Partridge’s evidence, his Honour noted she “gave evidence that she saw screwdrivers falling out of the pocket of the man doing the stabbing” and “[s]he said she could clearly see that there was nothing in the hands of the victim”.

53. As to Ms Noonan’s evidence, his Honour noted she gave evidence that she saw screwdrivers but was not sure where they came from.

54. The judge then turned to the evidence of the applicant, who said the screwdrivers were being held by the victim. His Honour remarked that he had “an interest in the outcome of the resolution of the issue” whereas Ms Partridge did not.

55. The judge concluded the applicant had not proven on the balance of probabilities that he had struck the victim with the knife because he had seen him armed with a screwdriver.

Argument

62. In written submissions, the applicant contended the judge failed to properly assess his evidence, essentially rejecting it because he had an interest in the outcome. The judge relied on the evidence of Ms Partridge, who his Honour noted did not have an interest.

63. The applicant argued the Crown did not put to the applicant that he was lying; only that he didn’t see the screwdriver and there was no perceived threat.

64. The applicant further contended it was not open to his Honour to find on the balance of probabilities that he was not satisfied the victim had a screwdriver in his hands at some point.

65. The applicant referred to the evidence of Mr Tomlinson, who said he saw screwdrivers fall from the victim, but was ultimately unsure of where they came from. He did however see that one of the screwdrivers dropped was blue and someone had picked it up. A blue screwdriver was recovered by police.

66. The applicant argued that Ms Partridge was the primary witness the judge relied on but there were several deficiencies in her account including:

1. The CCTV footage showed that she did not appear to look up at the fight until after the applicant had pulled the knife out, at which point the victim was facing away from Ms Partridge;

2. Ms Partridge said when she first turned around the person with the knife was near her. From the CCTV footage however, the victim was near her during most of the fight;

3. When it was put to Ms Partridge that she was mistaken as to whose pocket the screwdrivers fell from, she said they “fell out of the jacket of the guy with the knife”. In the CCTV footage the applicant is not wearing a jacket, though there was something around his waist; and

4. Ms Partridge did not give evidence about what the screwdrivers looked like.

67. In oral submissions, Mr Stratton, Senior Counsel for the applicant referred to Robinson v The Queen, and cited what was said by the High Court at 536:

“…But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.” [1]

1. (1991) 180 CLR 531; [1991] HCA 38 (“Robinson”).

68. Mr Stratton added that in Robinson, the High Court also indicated that a jury was entitled to take into account generally the interests that witnesses have in the outcome of the proceedings. [2] Nonetheless, it was submitted that to prefer Ms Partridge’s evidence on the basis that she had no interest in the outcome of the proceedings was an error.

    2. See Robinson at 536.

69. In written submissions, the Crown contended that his Honour’s finding in relation to the applicant having a greater interest in the outcome of the proceedings was an observation made in the context of a summary of the CCTV and testimonial evidence in the disputed facts hearing. The Crown noted that the judge delivered the judgment ex tempore and accordingly it was inappropriate to take an overly critical approach to the reasons. [3]

    3. Gommesen v R [2012] NSWCCA 226 at [37].

70. The Crown further argued that the judge made reference to evidence which contradicted the applicant’s account, including that his account was not assisted by the CCTV footage or photographic stills. Moreover, the Crown submitted, the only witness that supported the applicant’s account was Mr Tomlinson, who later accepted in his statement that he didn’t see where the screwdrivers came from. [4] The Crown said that the other witnesses either contradicted the applicant’s evidence or were neutral.

    4. See [20]-[27] above.

71. With respect to Ms Partridge’s evidence that she saw the screwdrivers fall from the pocket of the jacket of “the guy with the knife”, the Crown acknowledged that the CCTV does not depict the applicant wearing a jacket, but that it may be observed that an item appears to be around the applicant’s waist, namely a ‘bumbag’. The Crown submitted that whether Ms Partridge understood this item to be a jacket around his waist is unclear.

72. The Crown submitted that in the CCTV footage a screwdriver is not visible in the victim’s hands. Further submissions by the Crown included that the sequence of events described by the applicant were implausible,[5] as the CCTV footage shows the applicant already pulling out the knife before the sign even hit the ground. The Crown pointed to other internal inconsistencies in the applicant’s evidence which are unnecessary to recount.

    5. See [44] above.

73. The Crown argued that the judge did not misdirect himself when he referred to the interest of the applicant in the outcome of the case.

Consideration

74. In deciding this ground of appeal, I have viewed the CCTV footage that was played to the judge in addition to considering the transcript of evidence and the tendered exhibits.

75. It is not in dispute that the applicant bore the onus of proof on the balance of probabilities and it is plain he did not discharge that onus.

76. As the judge found, the applicant was neither assisted by the CCTV footage nor the ‘still shots’. The CCTV footage reveals that the applicant was the aggressor throughout and did not hesitate before stabbing the victim with force. It is evident from a close consideration of the ‘still shots’ that there was nothing in the victim’s hands shortly before he was stabbed.

77. I do not agree with the applicant’s contention that the judge misdirected himself when he said that the applicant had “an interest in the outcome of the resolution of the issue” whereas Ms Partridge did not. His Honour was not directing himself that he should evaluate the evidence “on the basis of the interest” of a witness in the outcome of this case. His Honour was doing no more than including in his assessment of the evidence whether a particular interest would be served by that evidence. As the High Court observed in Robinson at 536:

“…Thus, in examining the evidence of a witness in a criminal trial - including the evidence of the accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings...”

78. The judge was entitled to accept the evidence of Ms Partridge. It was consistent with Ms Coleman’s evidence that she did not see the victim holding a screwdriver in his hand and the ‘still shots’ shortly before the victim was stabbed. Although Ms Partridge was mistaken about the screwdrivers falling out of “a jacket” (which the applicant was not wearing), it is hardly surprising given the rapid and violent nature of the attack upon the victim. The ‘still shots’ of the footage at the railway station show the applicant was wearing a bumbag around his waist.

79. Having viewed the CCTV footage, I am otherwise unable to agree with what were submitted to be deficiencies in Ms Partridge’s evidence by the applicant.

80. His Honour was entitled to give little weight to Mr Tomlinson’s recollection of what he had seen and to conclude on all of the evidence that the applicant had not established on the balance of probabilities that he had struck the victim with the knife because he had seen him armed with a screwdriver.

81. I would reject Ground 1 of the appeal.

The proceedings on sentence

82. After delivering judgment on the disputed facts, the judge heard submissions from both parties and adjourned the matter for sentence on 12 August 2019. Included in the material tendered in the applicant’s case was a report from Emma Hübner, a psychologist, an affidavit from the applicant’s mother, letters from his older brother and grandfather, a letter from the applicant to the judge and a character reference.

The applicant’s personal circumstances

83. The applicant was born on 9 July 2000 and was 17 years old at the time of the offence.

84. Ms Hübner reported that the applicant emphasised his childhood was “all good” and that he was “going to school and playing football” until his brother’s death in 2012. The applicant told Ms Hübner his brother’s death was “the worst thing that has happened in my whole life”. The applicant’s mother described that as being a particularly difficult time for the family.

85. Ms Hübner recorded that after his brother’s death the applicant reportedly experienced increased anxiety and stopped attending football training. He began drinking alcohol and smoking cannabis with delinquent peers.

86. Ms Hübner reported that the applicant recalled being 14 years old when a man wielding a screwdriver allegedly set upon him and his friend, stabbing them both in a frenzied attack. He reportedly suffered blood loss, three broken ribs and was hospitalised for three days. The applicant described symptoms of unresolved grief around the loss of his brother and Post-Traumatic Stress Disorder (“PTSD”) as a result of being stabbed.

87. When referring to the “index offences and attitudes”, Ms Hübner’s report included that “[the applicant] claimed to have felt physically threatened by the victim. He described experiencing flashbacks of being stabbed when he was 14 years old and hypervigilance to the threat – ‘I knew they’d jump me’, ‘100 percent he had plans’ and ‘he didn’t want to talk’.”

88. When being given the opportunity to discuss his current feeling regarding the offences, the applicant told Ms Hübner “I fucked up his life, fucked up my life. I should have just run away” and “I thought it was just going to be a school fight, not people getting stabbed”. He later added “I feel sorry for him, he nearly died, and for his family because losing a family member is the worst thing that could happen”.

89. The personality assessment tests which Ms Hübner conducted included “Clinical Syndrome scales” which resulted in scores in the significant range on Anxiety, Dysthymia and Post-Traumatic Stress.

90. The applicant was found to be a “moderate to high” risk of re-offending.

91. Ms Hübner’s clinical opinion included the following:

“[The applicant] was 14 years old when he and a friend were stabbed in a frenzied screwdriver attack. He described symptoms of PTSD that developed, including re-experiencing trauma, avoiding reminders of the event, and negative changes in thoughts and mood. He claimed these symptoms were ongoing, and present, when he committed the index offence.

[The applicant’s] symptoms of PTSD are likely to exacerbate threat perception (hyperarousal and increased fear) and response (reactive anger and impulsivity), especially when the circumstances of the previous assault upon him are taken into account.”

92. In her affidavit, the applicant’s mother referred to her son’s close bond with his brother who passed away when the applicant was 12. She believed that the applicant had “ongoing or unresolved grief issues as a result of his brother’s passing”. She believed that the applicant was maturing in his attitude and had been very keen on improving his education whilst in custody.

93. She stated that her son had expressed to her “his regrets of that day and that he thinks about his actions and what impact it has had on the victim and his family and also on our family”.

94. The applicant’s older brother in a letter to the judge stated his belief that the applicant realised the severity of his actions and had discussed his remorse towards the victim. The applicant’s grandfather in his letter told the judge of his belief that the applicant had learnt from his time in custody and that he would support the applicant upon release from custody. He expressed his confidence that with support, the applicant would not re-offend.

95. The applicant’s letter to the judge included that he was sorry for what had happened because of the trauma he had put the victim through. He stated that he took responsibility for his crime and accepted whatever punishment he received that day.

96. The applicant’s criminal history revealed that he had one offence being damage to property for which he was placed on a s 33(1)(b) bond for 12 months at the Children’s Court at Parramatta on 9 May 2018.

The remarks on sentence

97. After recounting the offences for which the applicant stood for sentence and the applicable maximum penalties, the judge referred to the agreed statement of facts and said he would disregard any material that had been advanced in the sentencing hearing which was inconsistent with the agreed facts. His Honour said that there was “one aspect of the departure from the agreed facts to which I shall return later in the remarks”. [6]

    6. R v Phillip (a pseudonym) [2019] NSWDC 448 at [5] (“R v Phillip”).

98. The judge summarised the facts surrounding the applicant’s offending as follows:

1. As at October 2017 you were 17 years of age, approaching 18. 

[8] At a date not precisely identified in the material, you assaulted a 14 year old boy.  That boy, Ed (a pseudonym) was the brother of [Guylian] - and [Guylian’s] boyfriend was John.  John knew that you had assaulted his girlfriend’s younger brother. 

[9] On 2 November 2017, John, [Guylian] and one of John’s friends (Nick) were at a Sydney suburban shopping centre. 

[10] As they were walking through the shops, [Guylian] recognised you. She said to John: “That is [the applicant]” - from which I have inferred that, before that moment, John did not know you. 

[11] Once you were pointed out to John, he remembered what you had done to [Guylian’s] younger brother and he verbally confronted you.  An exchange passed between you and John. John yelled at you: ‘Why the fuck did you jump Ed?’  Your response is illuminating:  ‘The little cunt talks shit so I bashed him.’  John then said to you, ‘Why did you bash him, he’s only 14?’ 

1. You then immediately went into aggression mode. You put your hands up in a fighting stance and challenged John to a fight.  You admitted in the witness box last Friday that, in this exchange, it was you who was the aggressor.  You "invited" John to go outside to engage in the fight.  He suggested it be done there and then. But a fight did not break out, - instead John and [Guylian] just walked off.

[13] Shortly thereafter [Guylian] received a phone call from a friend of hers, Georgia.  Georgia informed Jillian that you were out the front of the shopping centre looking for Ed - the fourteen year old boy whom you had bashed some days beforehand.  It turns out that Ed had left the shopping centre before you could find him.

[14] At around this time [Guylian], knowing that her brother had gone, decided to leave the shopping centre complex. 

[15] [Guylian] and John were walking in the forecourt away from the shopping centre complex towards the taxi rank.  You, having armed yourself with a yellow wet floor sign, ran from behind them, and you threw that sign at John. 

[16] Even before the sign hit the ground, and in the same motion as you threw that sign, you reached into your pants and pulled out a knife which you had bought earlier that day.  You then ran towards John and you stabbed him in the left chest.” [7]

7. R v Phillip at [7]-[16].

99. His Honour found the victim “had done nothing to provoke either the throwing of the sign or the stabbing” and rejected the applicant’s claim that he felt threatened by the victim and his friends as being inconsistent with the agreed facts and not being proved on the balance of probabilities. [8]

    8. R v Phillip at [5].

100. His Honour told the applicant that “even if [the victim] had had a screwdriver, I am not satisfied that that had any relevance in connection with your cowardly and unprovoked throwing of the sign and your immediately presenting the large knife from your pants”. [9]

     9. R v Phillip at [17].

101. The judge said the applicant had stabbed the victim once to the left chest with a knife which was 24 centimetres long and having done so, ran from the scene.

102. His Honour noted that following the stabbing “[the victim] was taken to Westmead Hospital where he almost died. He remained in hospital for two months and underwent very serious treatment.”[10]

     10. R v Phillip at [19].

103. The judge repeated that the attack was unprovoked and cowardly and “was done by a person who had only days before bashed a 14 year old boy”. [11]

     11. R v Phillip at [20].

104. When referring to the victim impact statement, the judge in addressing the applicant said:

“John has provided the Court with a victim impact statement. You have read it; you know what it says. You know that his whole life has been substantially diminished by what you did. You know the psychological damage, as well as the physical damage, you have done to him. You know that the psychological damage you did to him has resulted in him trying, on multiple occasions, to take his own life. And you know that, apart from those two months that he initially spent in hospital, he has had to go back multiple times to deal with the physical consequences of what you did.”[12]

12. R v Phillip at [21].

105. As to the objective seriousness of the wounding offence, his Honour found it was “slightly above a mid-range offence” and the common assault was “towards but, not at, the bottom of the range for an offence of its kind”. [13]

     13. R v Phillip at [22].

106. With respect to the applicant’s subjective circumstances, the judge noted that until the age of 12, the applicant lived as a happy young child and was brought up in a loving and caring family. However when the applicant was 12, his older brother died from consuming illegal drugs which was a loss deeply grieved by the applicant’s parents and himself. His Honour observed that following his brother’s death, the applicant “began to unravel”, drinking alcohol, consuming cannabis and hanging out with undesirable influences. [14]

     14. R v Phillip at [26].

107. The judge noted that at the age of 14 the applicant was stabbed by a stranger, the circumstances of which were not before him. His Honour said the applicant was seriously injured and hospitalised for three days. His Honour observed that the applicant’s “already precarious mental condition further deteriorated following that traumatic experience, such that, amongst other things, you were expelled from school before completing Year 8”. [15] The judge said that the applicant’s use of alcohol and illegal drugs “only increased after the stabbing experience” which was “perhaps… a form of self-medication”. [16]

     15. R v Phillip at [27].

     16. R v Phillip at [28].

108. The judge referred to the applicant’s completion of a carpentry apprenticeship when he was 15 and noted it had come to an end after a short period of time. His Honour referred to the applicant’s work as a plumber’s assistant and as a bricklayer, both of which were for short periods and observed it was “[m]ore likely than not [that his] continuous and excessive use of alcohol and illegal drugs had something to do with [his] unhappy work history.” [17]

     17. R v Phillip at [29]

109. The judge noted the applicant had no meaningful criminal history and was therefore entitled to the leniency that could be extended to a first time offender.

110. The judge was not persuaded on the balance of probabilities that the applicant was genuinely remorseful. The judge said he “[had] come to that conclusion by reference to the manner in which the sentencing hearing was conducted” and also the numerous misconduct charges against the applicant while he was in custody. [18]

     18. R v Phillip at [38].

105. The judge added he “was not sure that [the applicant had] been full and frank with either the author of the Juvenile Justice report or the psychologist’s report”. [19] His Honour said neither of the authors seemed to be aware that it was the applicant who had assaulted a 14 year old boy “in the days before the encounter at the shopping centre”. [20] His Honour noted neither author seemed to know the applicant was the aggressor or that he had pursued the victim. His Honour said that in the Juvenile Justice report, the author stated “[the applicant] advised that he had some community issues with a friend of the victim in the days preceding the offences taking place”. [21] The judge said that to describe “the bashing of a 14 year old boy” as a “community issue” was an odd expression. [22]

     19. R v Phillip at [39].

     20. R v Phillip at [39].

     21. R v Phillip at [39].

     22. R v Phillip at [39].

106. The judge noted the psychologist concluded that the applicant was at a moderate to high risk of re-offending. However, his Honour observed the applicant had “the support and love of [his] parents who [had] been in Court on each occasion [the applicant had] been in front of [his Honour]”. [23]

     23. R v Phillip at [41].

107. The judge found that the applicant’s prospects of rehabilitation were “fair, at best”. [24]

     24. R v Phillip at [42].

108. His Honour determined that no other sentence than a period of imprisonment would be appropriate. Having regard to s 6 of the Children (Criminal Proceedings) Act1987 (NSW) and the psychological conditions the applicant suffered as a result of the loss of his brother and his own wounding, the judge considered the applicant was not an appropriate vehicle for the full application of general deterrence, but specific deterrence and the need to encourage the applicant’s rehabilitation were fully engaged.

109. The judge said that had the applicant been an adult at the time of the offences without psychological or psychiatric issues, he would have been sentenced in the range of 15 to 16 years. However, because of his youth and psychiatric conditions, his Honour said that an appropriate sentence for the wounding offence was 9 years’ imprisonment before the discount of 10%, which came to 8 years after the discount was applied (round figures).

110. The judge found special circumstances and varied the ratio of the head sentence to the non-parole period because of the applicant’s age, it being his first time in custody, that his prospects of rehabilitation would be enhanced by a longer period on parole and his psychological condition. A non-parole period of 4 years was fixed.

111. His Honour then imposed the sentences detailed at [5]–[7] above.

Ground 2: The learned judge erred in his assessment of the moral culpability of the offender by not taking into account his psychological condition at the time of the offence

Argument

118. In written submissions, the applicant referred to Ms Hübner’s opinion that following his own stabbing at the age of 14, the applicant developed symptoms of PTSD and that those symptoms “were ongoing and present when he committed the index offence”.

119. The applicant argued that the judge did not make a finding as to whether he was suffering from PTSD and whether that had an effect on his moral culpability at the time of the offence.

120. The applicant cited Director of Public Prosecutions (Cth) v De La Rosa where McClellan CJ at CL said at [177]:

“…Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced…”[25]  

25. (2010) 79 NSWLR 1; [2010] NSWCCA 194; 205 A Crim R 1 (“De La Rosa”).

121. The applicant submitted the judge fell into error by only considering the agreed facts to assess moral culpability and not taking into account the causal effect of the applicant’s mental health issues at the time of the offence. It was contended “there was evidence that the effects of PTSD that were present at the time of the offence contributed to the offending, due to the [applicant’s] perception of fear of being attacked by the victim and his friends, and the reactive anger and impulsivity of stabbing the victim”. In oral submissions, Mr Stratton argued the judge should have specifically taken into account the psychological evidence in relation to moral culpability.

122. Whilst the Crown accepted the judge did not make an express finding as to the effect the applicant’s symptoms of PTSD had on his moral culpability for the offence, the Crown argued that it was implicit in the sentencing remarks. The Crown submitted it was clear that the judge had regard to the contents of the Juvenile Justice and psychological reports but did not accept what the applicant purported to be his psychological state at the time of the offence.

123. The Crown contended it was apparent from his Honour’s sentencing remarks that he gave careful consideration to the applicant’s psychological condition and afforded it considerable weight on the issues of general deterrence, the setting of the head sentence and varying the statutory ratio.

Consideration

124. The applicant’s argument on this ground was founded upon the
     

     26. De La Rosa at [177]; see also Aslan v R [2014] NSWCCA 114 at [33]-[35].

     well-established principle that where the state of a person’s mental health contributes to the commission of the offence in a material way, an offender’s moral culpability may be reduced. [26]

125. The central issue for the judge was whether the applicant’s symptoms of PTSD played a causative role in the wounding offence.

126. The judge found that the victim did nothing to provoke the applicant and did not accept the applicant’s claim that he felt threatened by the victim and his friends. In making these findings, the judge rejected the argument that underpinned the contention that there was a causal connection between the symptoms of PTSD and the commission of the offence.

127. Although it is true that no express finding was made as to the applicant’s moral culpability, it is evident that such a finding was made from the judge’s repeated statements in his sentencing remarks that the attack was unprovoked and cowardly. As McCallum J (as her Honour then was) observed in Egan v R at [37]:

“…A failure to attach the label “moral culpability” to any specific finding or give it a precise value in reaching an appropriate sentence does not reveal error. Indeed, the decision in Muldrock disapproves that kind of approach.”[27]

27. [2017] NSWCCA 206.

128. The judge did not disregard Ms Hübner’s report. His Honour’s reasoning that the applicant was “not an appropriate vehicle for the full application of general deterrence” included “the psychological conditions” from which he suffered as a consequence of the loss of his brother and his own wounding. Such a finding was consistent with the second principle in De La Rosa (that the state of a person’s mental health may have the consequence that an offender is an inappropriate vehicle for general deterrence). Furthermore, the applicant’s mental health was one of his Honour’s reasons for the undiscounted starting point of 9 years’ imprisonment and the finding of special circumstances so that the statutory ratio between the head sentence and non-parole period was reduced to 50%. [28]

     28. See [115]-[116] above.

129. I would reject Ground 2 of the appeal.

Ground 3: (a) the learned judge erred when he took the disputed facts hearing into account when considering remorse (b) It was not open to his Honour to find the offender had no remorse

Argument

130. In written submissions, the applicant pointed to the judge’s sentencing remarks where his Honour stated that on the balance of probabilities he was not persuaded the applicant had genuine remorse. The judge went on to say “[i]n part I have come to that conclusion by reference to the manner in which the sentence hearing was conducted”. [29]

     29. R v Phillip at [38].

131. The applicant contended that the judge erred in taking the disputed facts hearing into account. The applicant cited what was said by Spigelman CJ in R v Thomson; R v Houlton that “…even a plea of not guilty to a particular offence may be consistent with genuine remorse…”[30] The applicant submitted this was all the more so in circumstances where there was a guilty plea and a disputed facts hearing as to the presence or absence of a mitigating factor.

     30. (2000) 14 NSWLR 374; [2000] NSWCCA 309; 115 A Crim R 104 at [117].

132. Another submission referred to the judge’s expression of uncertainty that the applicant had been full and frank with the author of the Juvenile Justice report and Ms Hübner. The applicant argued that the agreed facts were known to both authors before the applicant was interviewed and the judge incorrectly treated the absence of that information from both reports adversely to the applicant’s credibility and to his finding on remorse.

133. The applicant further pointed to his evidence of taking “full responsibility” during the disputed facts hearing, his letter to the judge and his expression of regret in the Juvenile Justice report. The applicant argued it was not open to the judge to find on all the evidence that the applicant did not have genuine remorse.

134. In oral submissions, Mr Stratton contended that the judge erred in finding that the contested facts hearing eroded the value of the applicant’s contrition. He submitted that at all stages, the applicant fully accepted responsibility for the offence.

135. The Crown submitted that the judge was entitled to have regard to the applicant’s evidence in the disputed facts hearing in assessing his remorse. Another contention was that it was open to the judge to conclude that the applicant had not been entirely honest and forthright with the authors of the reports. The Crown argued that it was open to the judge not to have been persuaded on the balance of probabilities that the applicant was genuinely remorseful.

Consideration

136. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that remorse shown by the offender for the offence is to be taken into account as a mitigating factor in determining the appropriate sentence, but only if:

21A   Aggravating, mitigating and other factors in sentencing

…

(i)  the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii)  the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)

137. The applicant bears the onus of establishing remorse on the balance of probabilities. [31]

     31. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; 103 A Crim R 149 at [25]-[27].

138. There was evidence of the applicant’s remorse for his offending in the Juvenile Justice report, Ms Hübner’s report, his mother’s affidavit, his brother’s letter, his letter to the Judge and in the disputed facts hearing during which he relevantly gave the following evidence:

“EXHIBIT B PLAYED TO COURT

Q. You saw that didn’t you [BC]?

A. Yes, I saw it.

Q. At all times when the knife is being produced the victim is walking away from you, he’s moving backwards and backwards and backwards; that’s right isn’t it?

A. Yes.

Q. And the victim wasn’t attacking you at any point was he?

A. He walked back because the knife I had was bigger than what he had.

Q. But he wasn’t attacking you was he?

A. He would have.

Q. You didn’t believe it was necessary to stab [the victim] to defend yourself did you?

A. Yes, I did.

Q. From the point that you had the yellow sign in your hands you intended on stabbing the victim; that’s right isn’t it?

A. No.

HIS HONOUR

Q. Look, [BC], you went after him, you came out of that shopping centre, he was walking away from the shopping centre, he had his back to you and the shopping centre and you went in pursuit of him, that’s what that film shows me doesn’t it?

A. Yes, your Honour. Because I was willing to fight but I wasn’t willing to stab.

HIS HONOUR: Yes, keep going.

NG

Q. [BC], you simply did not see the victim hold a screwdriver in his hand at any point did you?

A. Yes, I did.

NG: Your Honour, if I could move onto another topic.

HIS HONOUR: Yes. That would be best.

NG

Q. [BC], what you’re saying and what you’re maintaining is that the victim had a screwdriver in his hand; that’s right isn’t it?

A. Yes.

Q. And do you believe that if the victim didn’t have that screwdriver in his hand that you wouldn’t have stabbed him?

A. Yes.

Q. Really, you’re not taking full responsibility, you’re partially blaming the victim for having a screwdriver?

A. No.

Q. When you say no, do you mean no, that you are taking full responsibility or something else?

A. At the end of the day I made a choice to do something and I take full responsibility of that, but I’m saying there’s something that triggered the choice I made.” (Emphasis added.)

139. Although the applicant testified that he took “full responsibility”, his acceptance of responsibility was qualified by his assertion that he struck the victim with the knife because he had seen him armed with a screwdriver and believed it was necessary to defend himself. The judge rejected this evidence and found that the attack was cowardly and unprovoked.

140. It should not be overlooked that a judge is not obliged to accept assertions of remorse made by an offender. [32] The acceptance or rejection of the applicant’s evidence of remorse was a discretionary matter for the judge to which the principles of House v The King apply. [33]

     32. R v Nguyen [2004] NSWCCA 438 at [21]; Windle v R [2011] NSWCCA 277 at [41]-[42] (“Windle”).

     33. Windle at [42]; House v The King (1936) 55 CLR 499 at 504-5; [1936] HCA 40 (“House”).

141. The judge had the advantage of seeing and hearing the applicant give his evidence, which this Court does not have.

142. It was open to his Honour to find that the applicant’s testimony of remorse was not genuine. Furthermore, it was open to the judge not to accept the expressions of remorse in the written material as being sincere.

143. The applicant sought to apportion blame to the victim and the judge did not err in taking this into account as the applicant bore the onus of establishing that he accepted responsibility for his actions.

144. Whilst the judge did not expressly refer to the provisions of s 23A(3)(i) of the Crimes (Sentencing Procedure) Act it was within his Honour’s sentencing discretion to conclude on all of the evidence that genuine remorse had not been demonstrated. No House error has been identified.

145. I would reject Ground 3 of the appeal.

Ground 4: The sentence was manifestly excessive

Argument

146. In written submissions, the applicant contended that in not taking into account his mental condition at the time of the offence, the judge had erred in assessing the objective gravity of the offence.

147. The applicant pointed to the judge’s remarks that “the victim almost died” and submitted there was no evidence to ground those remarks.

148. Reference was made to the applicant’s strong subjective case and to the judge’s assessment of his prospects of rehabilitation. It was submitted that the fact that the applicant unsuccessfully asserted the existence of a mitigating fact, was not relevant to his prospects of rehabilitation.

149. The applicant was critical of the judge’s reference to his misconduct charges whilst in custody as a factor in the assessment of his prospects of rehabilitation and submitted that the reports of his misbehaviour should be seen in the context of his being in custody for nearly three years since his arrest. Another submission was that the background report was “overall… quite positive”.

150. The applicant contended that the applicant’s sentence was at the upper end of sentences for the wounding offence of offenders under the age of 18 years. The applicant provided two graphs, one of which showed the head sentences and non-parole periods before the sentencing reforms in 2018 and the other after 2018. The applicant cited the sentences imposed in JB v R [34] and Lloyd v R [35] as comparative cases.

     34. [2012] NSWCCA 196.

     35. [2017] NSWCCA 303.

151. In oral argument, Mr Stratton emphasised the strength of the applicant’s subjective case and submitted that Ms Hübner’s report and the background report were very positive. Senior Counsel contended that in considering the comparative cases, it was clear that the applicant’s sentence “was a very heavy one for a young man of his age” and was manifestly excessive.

Consideration

152. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [36] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [37] It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [38]

     36. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (“Markarian”); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 204 A Crim R 434 at [59].

     37. Markarian at [27]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; 236 A Crim R 116 at [34].

     38. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

153. One of the matters raised by the applicant in support of the complaint of manifest excess is that the judge was in error in not taking into account the applicant’s mental condition at the time of the offending in assessing the objective gravity of the offence.

154. When dealing with Ground 2 of the appeal, I rejected the argument that the judge had erred in his assessment of the applicant’s moral culpability by not taking into account his psychological condition at the time of the offence.

155. There was ample material before his Honour to justify his assessment of the objective gravity of the offence. The CCTV footage shows the high level of violence employed by the applicant in stabbing the victim to his left chest with a 24 centimetre knife. The victim was backing away at the time.

156. I agree with the judge’s description that the attack was unprovoked and cowardly but would add that it was merciless.

157. The gravity of the injuries sustained by the victim were summarised in the agreed statement of facts, expanded upon in Dr Oh’s statement and further revealed by the Victim Impact Statement. Without comprehensively detailing that material, the victim was hospitalised for two months and three days. He was brought in to Westmead Emergency shortly after he was stabbed with “major trauma cell activation” and the stab wound was located just inferior and medial to the left nipple. He was taken to the operating theatre as part of the “code crimson protocol”. He was operated on by trauma surgeons and during surgery, a clot in the pericardial space and a laceration to the apex of the heart were located. Digital pressure was applied until a cardiothoracic surgeon arrived, whereupon a small bleeding vein was sutured and a bovine pericardial patch was applied.

158. Two days later, a midline laparotomy was performed revealing, inter alia, a laceration to the anterior wall of the victim’s left stomach which was repaired. Post-operatively, the victim’s condition included ongoing fevers and sepsis. About a week after admission, he remained septic and later developed other infections and a right internal jugular vein thrombosis. He eventually required tube feeding.

159. The summary of the victim’s injuries in the agreed facts included lacerations to the lesser omentum, to the left lobe of the liver and a four centimetre diaphragmatic laceration. The victim underwent numerous invasive procedures and surgeries and after discharge on 4 January 2018 was required to take antibiotics and anticoagulants for deep vein thrombosis.

152. The impact on the life of the victim has been substantial. In the Victim Impact Statement, the victim refers to his whole life being changed. Prior to the offence, he was “a hard working family loving man… working three jobs daily”. He recounts “the multiple dreams and visions of that same knife sliding into [his] chest” and of the “PTSD that [he] will now forever live with”.

153. The victim refers to his sense of hopelessness when stating “[s]ince the attack there’s been multiple times I’ve had thoughts that there was no hope to life. I’ve tried multiple suicide attempts.”

154. The applicant complains that the judge erred when he remarked that the victim almost died. It is certainly the case in the agreed statement of facts and Dr Oh’s statement that there is no express statement to that effect. However, there can be no doubt that the victim sustained life threatening injuries with the inevitability of death but for the benefit of the care and operative treatment he received at Westmead Hospital.

155. Another complaint appears to be that the judge took into account the applicant’s conduct on remand in assessing his prospects of rehabilitation. In the Juvenile Justice report, the author noted:

“In the last three months, [the applicant] has received four misbehaviour reports for fighting, bad language, disobedience, harassment and subversive behaviour. It should be noted that [the applicant] has received four misbehaviour reports in the last three weeks and half the misbehaviour reports have been around fighting other clients in the centre. [The applicant] has demonstrated times of consistent behaviour in the centre, but his behaviour and thoughts around fighting others has been consistent through his custodial sentence.” (Emphasis added.)

164. The thrust of the applicant’s criticism was that his misbehaviour had occurred over a three week period whilst he had been in custody for nearly three years and the report should have been viewed in this way. It appears, however, from the emphasised passage at [163] above, that the applicant’s “behaviour and thoughts around fighting” was not a recent matter but had been maintained from the time he entered into custody. In any event, it was open to the judge to consider the applicant’s custodial behaviour as relevant to the assessment of his prospects of rehabilitation. Furthermore, there was Ms Hübner’s conclusion that the applicant was “a moderate to high risk of re-offending”.

165. The assessment of the applicant’s prospects of rehabilitation as “fair, at best” was open on all the evidence before his Honour.

166. In submitting that the sentence is manifestly excessive, the applicant identified two cases which were said to be comparative.

167. In Lloyd v R,[39] Barry (a pseudonym) was a 15 year old boy who had pleaded guilty with his two older brothers to two offences of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. Barry was sentenced to an overall term of imprisonment of 4 years with a non-parole period of 2 years 3 months. The sentence was discounted by 10% to reflect the utilitarian benefit of Barry’s late guilty plea. A further offence of affray on a Form 1 was taken into account by the sentencing judge in sentencing Barry for the offence in count 1.

     39. [2017] NSWCCA 303.

168. Shortly stated, the facts were that Barry and his two older brothers, Jake (a pseudonym) and Gary (a pseudonym), had an initial altercation with a boy named Baden Grundy in a food court. The three brothers later tracked down Baden, his brother and father. Barry struck Baden to the head whereas his brother Gary’s offending included stabbing Terry Grundy with a knife from behind and stabbing Todd Grundy in the chest, abdomen and right upper limb. Jake attempted to stab Terry Grundy in the throat but the knife struck his arm and chest. As Terry Grundy was lying on the ground, Barry began to cheer and struck him.

169. Barry had a strong subjective case. He had no prior offences and was found to have good prospects of rehabilitation. The appeal against sentence was dismissed.

170. A difficulty for reliance on Barry’s sentence as a close comparator is that Barry did not stab any of the victims. His criminal liability for the wounding offences was founded upon participation in a joint criminal enterprise. Jake who was 20 years old at the time of the offending was sentenced to an aggregate term of imprisonment of 8 years 4 months with a non-parole period of 5 years 3 months. His sentence had been discounted by 10%.

171. An aggregate sentence of 6 years 7 months with a non-parole period of 4 years 1 month was imposed on Gary, who was 18 years old. His sentence had been discounted by 15%.

172. In JB v R,[40] JB was aged 17 years and 3 months when he attacked his victim, punching him eight to ten times to the head. After walking away, JB returned and again punched the victim to the head, this time from behind, with the result that the victim fell to the ground, unconscious. The victim suffered bleeding to the brain, swelling and fluid to the brain, a brain haemorrhage, a wound to the back of the head, a fractured eye socket and chipped tooth. JB pleaded guilty to one count of wounding with intent to inflict grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. JB was sentenced to 5 years and 3 months’ imprisonment with a non-parole period of 3 years. The sentence was discounted by 25% for his guilty plea.

     40. [2012] NSWCCA 196.

173. The sentencing judge assessed the objective gravity of the offence to be slightly below the mid-range. The offending was unplanned, alcohol-fuelled and did not involve a weapon. JB was found to be remorseful. JB had a significant prior criminal history and was on conditional liberty at the time of the offence.

174. JB’s appeal to this Court was dismissed. In dismissing the appeal, Schmidt J (with whom McClellan CJ at CL and R A Hulme J agreed) observed at [38] that JB’s sentence was “not a heavy penalty for this offence”. The undiscounted starting point of JB’s sentence was 7 years’ imprisonment.

175. It is unnecessary to canvass the facts and circumstances in JB in any further detail as the case is distinguishable on various bases.

176. A major matter of difference between JB and the present case is that the objective gravity of the applicant’s offence was assessed to be slightly above the mid-range whereas the assessment of the objective gravity of JB’s offence was slightly below mid-range.

177. Neither Lloyd nor JB lead to a conclusion that the applicant’s sentence is manifestly excessive.

178. Another submission was that the applicant’s sentence was at the upper end of sentences for offences contrary to s 33(1)(a) of the Crimes Act when the offender was under the age of 18. The applicant provided two graphs of Judicial Commission sentencing statistics (“JIRS statistics”). The first graph was said to demonstrate that out of 25 offenders prior to the September 2018 sentencing reforms, no offender received a sentence of 8 or more years’ imprisonment. The highest head sentence was 7 years and the highest non-parole period was 3 years. For sentences imposed after the 2018 reforms, there were two offenders, one with a higher sentence than the applicant at 10 years’ imprisonment and a non-parole period of 6 years and 6 months. The applicant pointed out that this offender had additional offences and prior criminal convictions.

179. There are 27 offenders (other than the applicant) who fall within the relevant JIRS statistics. Other than the case of AR (a pseudonym), who received an aggregate sentence of 10 years’ imprisonment, the range of head sentences for a s 33(1)(a) offence span from 2 years to 7 years with non-parole periods from 6 months to 4 years. In R v Jasper,[41] a 15 year old offender was sentenced to imprisonment for 6 years and 9 months with a non-parole period of 2 years and 5 months after a discount of 25% for an early guilty plea. The undiscounted starting point of the indicative sentence would have been 9 years’ imprisonment (round figures).

     41. [2014] NSWDC 116.

180. In AR, the indicative sentence for the wounding offence was 7 years’ imprisonment with a non-parole period of 4 years after a sentencing discount which is not recorded in the JIRS statistics. Should the discount have been 25% as he pleaded guilty in the Children’s Court, the undiscounted starting point of the indicative sentence would have been 9 years and 4 months.

181. In Skocic v R,[42] Bellew J summarised the use that can be made of JIRS statistics at [19]:

“…In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following:

(i) consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49].

(ii) sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41];

(iii) the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were;

(iv) this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another;

(v) the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75].”

42. [2014] NSWCCA 225.

182. In the present case, the JIRS statistics demonstrate that the applicant’s sentence is at the upper end of sentences for a s 33(1)(a) offence committed by an offender of the applicant’s age. However, they do not show that the sentence was outside the legitimate exercise of his Honour’s sentencing discretion.

183. The maximum penalty for the offence is 25 years’ imprisonment. This was a serious act of violence with a knife which had grave consequences for the victim. The applicant has not established that the sentence was unreasonable or plainly unjust.

Orders

184. Accordingly, I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

185. WRIGHT J: I agree with Price J.

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Endnotes

Decision last updated: 14 December 2020