Brown v The Queen

[2020] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Brown v R [2020] NSWCCA 132

Hearing dates:

25 May 2020

Date of orders:

01 July 2020

Decision date:

01 July 2020

Before:

Hoeben CJ at CL at [1]
Harrison J at [2]
Beech-Jones J at [52]

Decision:

(1)    Grant leave to appeal and allow the appeal.

(2)    Quash the sentence imposed by his Honour Marien SC A-DCJ on 9 August 2019.

(3)    In lieu thereof, sentence the applicant to an aggregate term of 6 years imprisonment commencing on 20 September 2018 and expiring on 19 September 2024 with a non-parole period of 3 years and 10 months expiring on 19 July 2022.

(4)    The indicative sentence for Count 1 is 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The indicative sentence for Count 2 is imprisonment for 2 years.

Catchwords:

APPEAL – sentence appeal – where altercation at motel – whether error in making findings as to objective seriousness – whether Crown made concession as to objective seriousness – where objective seriousness a matter for sentencing judge – where applicant not denied procedural fairness – where sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), ss 35(1), 59(2)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:

Chong v R [2017] NSWCCA 185

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

KR v R [2012] NSWCCA 32

McClelland v R [2019] NSWCCA 59

Stojanovski v R [2013] NSWCCA 334

Category:

Principal judgment

Parties:

Matthew Dean Brown (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Howell (Applicant)
E Balodis (Respondent)

Solicitors:
Legal Aid of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/77948

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW, Griffith

Jurisdiction:

Criminal

Date of Decision:

09 August 2019

Before:

Acting Judge M Marien SC

File Number(s):

2017/77948

Judgment

1. HOEBEN CJ AT CL: I agree with Harrison J.

2. HARRISON J: Matthew Brown seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the aggregate sentence imposed upon him by Marien A-DCJ in the District Court at Griffith on 9 August 2019. Mr Brown had earlier pleaded guilty to the following offences:

Count 1: recklessly inflict grievous bodily harm in company to Simon Green on 13 March 2017 at Leeton contrary to s 35(1) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment with a standard non-parole period of 5 years.

Count 2: assault occasioning actual bodily harm in company to Carley Standford on 13 March 2017 at Leeton contrary to s 59(2) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment.

3. His Honour sentenced Mr Brown to an aggregate sentence of imprisonment for 7 years and 3 months with a non-parole period of 4 years and 10 months commencing on 20 September 2018. His Honour noted indicative sentences of 6 years and 3 months with a non-parole period of 4 years for Count 1 and 3 years for Count 2.

4. Mr Brown relies upon two grounds of appeal as follows:

Ground 1: The learned sentencing judge erred by making findings as to the objective seriousness of the offences which contravened concessions made by the Crown and of which the applicant was not on notice.

Ground 2: the aggregate sentence imposed is manifestly excessive.

Facts

5. The victims Mr Green and Ms Standford were in a domestic relationship. Ms Standford was the manager of the Town Centre Motel in Leeton which offered emergency accommodation to clients of the Department of Housing. Mr Green assisted her from time to time.

6. On 8 March 2017, Mr Brown together with his then partner and co-offender, Tara Kilby, and two children, sought emergency accommodation at the motel. The motel room provided to them was the only one available. It did not have a functioning air conditioner.

7. On 12 March 2017, between 8.30pm and 9.00pm, Ms Kilby approached Ms Standford aggressively and pushed a bundle of linen into her chest. Ms Standford explained to Ms Kilby that it was Ms Kilby’s responsibility to service her motel room. Ms Kilby swung her fist at Ms Standford’s face but Ms Standford avoided the punch. She told Ms Kilby to collect her belongings and leave the motel. Ms Kilby and Mr Brown were subsequently observed removing their belongings from the motel room, placing them into a car and leaving the premises.

8. The following morning at about 3.20am, Ms Standford was woken by banging on her front bedroom window. She went outside and confronted two males and a female. She called out to Mr Green saying, “They are back”. The two males and female began assaulting Ms Standford. They punched and kicked her and she fell to the ground. As she was being assaulted, Ms Standford saw Ms Kilby running towards her. Ms Kilby kicked her while she was on the ground. It was common ground that Mr Brown played no part in the assault on Ms Standford. His liability for the actions of the direct participants to that assault was on the basis of joint criminal enterprise.

9. As Ms Standford was being assaulted, Mr Green came outside. He tried to intervene and the two males assaulting Ms Standford began punching him. Ms Kilby and the other female continued assaulting Ms Standford while she was on the ground.

10. Mr Brown ran to assist the two males who were punching Mr Green. The agreed facts describe his involvement in the following terms:

“During the assault, Green suffered three wounds. Two of the wounds were to the shoulder to Green and did not require stitching. Green suffered the third to his back which punctured Green’s left lung causing it to deflate. [Mr Brown] stabbed Green causing the injuries.”

11. A short time after this, all five people involved in the offences left the motel. A pair of scissors and a baseball cap were left behind. A DNA profile consistent with Mr Brown was found on both items.

12. Ms Standford was taken to Leeton Hospital with injuries to her face and body including bleeding and bruising. Mr Green was taken to Wagga Rural Referral Hospital. His wounds were expected to heal within one month.

13. Later that day at about 4.40pm, Ms Kilby and Mr Brown were arrested.

Mr Brown’s personal circumstances

14. At the time of the offences, Mr Brown was approximately 33 years of age. He had previous convictions for damaging property, break and enter, receiving, larceny and custody of a knife. In 2008 he was convicted of stalk/intimidate and contravene an apprehended violence order and was sentenced to community service and a good behaviour bond. In 2009 he was convicted of assault and sentenced to imprisonment for 9 months with a non-parole period of 2 months.

15. Following the offences, Mr Brown was admitted to custody and remained there until he was released to bail on 20 July 2017. While at liberty on bail he absconded, and was ultimately re-admitted to custody on 27 January 2019 where he remained until his sentencing.

16. Born and raised in Leeton, Mr Brown was three years old when his father died in a motor vehicle accident. When he was seven his mother re-partnered. Mr Brown’s childhood was stable, he was well cared for and was raised together with his sister and half-brother. However, as an adolescent, Mr Brown became increasingly uncontrollable. When he was 12, he began using cannabis, gradually increasing his use until it was “heavy” and “daily”. From the age of 13 he began also to use methylamphetamine which escalated over time. He reportedly began engaging in criminal activity to support his drug use. His friends were anti-social.

17. At 15, he left home and effectively became homeless. He distanced himself from his family. At about the same time, he was expelled from school for threatening teachers. He did not complete any further education. As an adult he has held various jobs at different times including positions in farming and labouring but has also endured periods of unemployment.

18. As a young adult, Mr Brown continued to use drugs and also abuse alcohol. However in 2009, at the age of 25, Mr Brown engaged for six months in residential drug and alcohol treatment at the Canberra Recovery Service. The treatment had a positive impact on Mr Brown and he successfully maintained abstinence for several years (coinciding with a cessation of recorded criminal offending). During this sustained period of abstinence, he became the primary carer for two of his three children. Both children in his care were under 10 years of age.

19. In early 2017, Mr Brown relapsed and again began consuming methylamphetamine. Several things had occurred in his personal life which left him vulnerable to relapse, including loss of employment, loss of housing and conflict in his relationship. He relinquished the care of his two young children. He used methylamphetamine together with Ms Kilby up until his remand into custody for the offences. When he was released to bail in July 2017, he absconded and again relapsed into drug use.

20. Mr Brown reported to psychologist Patrick Sheehan that he had previously been diagnosed with depression and bi-polar disorder. He reported a history of symptoms of low mood and mania. He told Mr Sheehan that he had tried various medications over the past decade including several antidepressants, lithium and anti-psychotics. In the weeks before the commission of the offences, he said he had stopped his medications and was consuming only methylamphetamine. He did not recommence any medication until his second admission to custody in January 2019. He said that his mental health during the intervening period had been “very unstable”. Mr Sheehan was of the opinion that Mr Brown met the criteria for substance use disorder and suggested this had contributed substantially to his poor adjustment and criminality (both past and present).

21. Since returning to custody in January 2019, Mr Brown has been in regular contact with his family and reported a much improved relationship with his step-father in particular. He planned to live with his family in Leeton when released. He denied any relapse into substance use in custody. He held a position within his gaol as a sweeper and expressed interest in undertaking further drug and alcohol rehabilitation. Mr Sheehan quoted Mr Brown as stating, “I’ll do whatever it takes. I want to bring my family and my children back into my life”. He had re-commenced medication including an anti-psychotic and reported feeling neither depressed nor manic.

22. Mr Brown said he had little memory of the offences. He recalled being in a conflict with the victims and being angry but said that the offences were “all a bit of a blur”. He said frankly that Mr Green “could have died” and that no doubt the event would have been traumatic for him. In a handwritten letter to the Court, Mr Brown expressed contrition for his actions and the effect that they may have had on the victims. He wrote a separate handwritten letter to the victims in which he said, amongst other things, “I can’t [express] how sorry and ashamed I am for [what] I’ve done to you … I shouldn’t [have] done what I done [sic]. I can’t say sorry enough. I so hope you can take on board and except [sic] my apology. Not a day goes by I’m not thinking of you …”

23. Personal references tendered on sentence indicated that Mr Brown would be supported by his family upon his eventual release from custody.

Ground 1

24. The proceedings on sentence took place before his Honour on 6 and 7 August 2019 in the District Court at Griffith. His Honour delivered his remarks and imposed a sentence on 9 August 2019.

25. In relation to the objective seriousness of the offences, Mr Brown’s counsel submitted that Count 1 fell “just below the mid-range” and that Count 2 was “well below mid-range”. In reply, the following exchange occurred between the Crown and his Honour:

“BAUMGARTEN: In this matter the Crown agrees with my learned friend’s assessment that it’s below mid-range but not to any great extent.

HIS HONOUR: What about the assault occasioning?

BAUMGARTEN: Approximately mid-range or slightly below, but for a much less serious offence.

HIS HONOUR: Yes, it’s a less serious offence, but I still have to assess the objective seriousness of it.

BAUMGARTEN: Yes. So slightly below mid-range.

HIS HONOUR: Is that what you say for the first offence, s 35(1)(a) as well, just below mid-range?

BAUMGARTEN: Yes.

HIS HONOUR: Thank you.”

26. In McClelland v R [2019] NSWCCA 59, Fullerton J said this at [17]:

“An assessment of objective seriousness necessarily involves the exercise of an evaluative judgment by the sentencing judge. For that reason, usually, although not invariably, the question of the objective seriousness of the offending the subject of a sentencing exercise attracts competing submissions at the sentencing hearing, and necessarily so where the assessment is in contest. On occasions, the Crown concedes that particular offending should or ought be regarded by the sentencing court as reflecting a particular degree of objective seriousness or moral culpability. In those circumstances, a departure from that concession by the sentencing judge, without the offender being given the opportunity of addressing the issue by submissions or evidence, may be productive of a denial of procedural fairness resulting in a miscarriage of justice.”

27. In McClelland her Honour, in considering this aspect of procedural fairness in sentence proceedings, referred to what the High Court said in DL v The Queen [2018] HCA 32 at [39] and what Basten JA said in Chong v R [2017] NSWCCA 185 at [5]. Her Honour continued at [21]:

“Having regard to the extracts from DL and Chong above, I accept that were the Crown Prosecutor to have conceded, either expressly or by necessary implication, that the offending the subject of each of Counts 1, 2 and 3 was no higher than low range offending, that would have operated to constrain the exercise of the judge’s sentencing discretion such that a finding of objective seriousness contrary to the Crown’s concession, without notice to the applicant that she was minded to take a different approach, would have been productive of a procedural unfairness …”

28. In this case, the Crown submitted below that the objective seriousness of Count 1 fell just below mid-range and that the offending the subject of Count 2 fell slightly below mid-range. Each of these submissions by the Crown was made following submissions made on behalf of Mr Brown, which also put the offending for both counts below the mid-range. In light of those submissions, the parties’ joint assessment of the objective seriousness of Count 1 was not in contest. As far as there was a contest in respect of Count 2, it was limited to the extent to which that offence fell below the mid-range.

29. During the sentencing proceedings, his Honour gave no indication that he was minded to take an approach that was contrary to the Crown’s stated position. Mr Brown submitted that this issue was of particular importance in respect of Count 1 because of the application of the standard non-parole period, to which his Honour gave prominence in his remarks. Having not been put on notice of his Honour’s disagreement with the Crown’s assessment, Mr Brown submitted that his counsel was given no opportunity to address the issue further by way of submissions or evidence. The findings that his Honour made as to the objective seriousness of each Count were ultimately contrary to the submissions of the parties: his Honour stated expressly that he did not agree with the submissions put to him by the Crown and Mr Brown’s counsel. Mr Brown submitted that it follows that his Honour’s approach was productive of a procedural unfairness on an issue that was of critical importance to the exercise of the sentencing discretion.

30. In Chong at [37]-[39], I said this:

“[37] It is well established that the adoption of a description of a person’s particular role in, for example, an enterprise involving the manufacture or acquisition of drugs, and their wider distribution and supply, must yield to the precise factual basis said to support the description that has been chosen. It would also appear to be well understood, in sentencing parlance, that “a courier” is generally regarded as an individual whose involvement among a range of other individuals is limited to the physical act of carrying or delivering the offending substance, unassociated with any more sophisticated or sinister responsibilities. The potential rewards for such assistance are also generally understood to be smaller, along with the corresponding level of criminality. It would generally seem to be the case that a courier in this context is to be regarded as someone on the bottom rung of the enterprise.

[38] For better or worse, these labels or descriptions are regularly used to provide convenient, and hopefully accurate, assessments of the comparative positions of individuals concerned in sentencing for drug offences. It seems to me therefore to be very important for sentencing purposes that any concession by the Crown that an accused person falls within a particular category of criminal responsibility, and upon which an accused person would appear to have relied, should not lightly be departed from and not, as it were, without notice. Notice in that context incorporates the notion that the accused person will be given the opportunity to address the prospect that the assumption will be disregarded by the sentencing judge if that is proposed. It is very easy, in the language of a different discourse, to appreciate that Mr Chong, or someone in his position, might be thought to have altered his position to his detriment by reliance upon the expectation that the assumption would not be departed from by the sentencing judge.

[39] In the present case, that alteration consisted in Mr Chong’s counsel reasonably saying nothing to convince the primary judge that Mr Chong was not somewhat more than a courier. Even though at a semantic level the difference between the two roles, finding expression in the term “somewhat more”, may not be great, the lost opportunity to address the difference is. In particular is this so, for the reasons given by Basten JA, where the inference is that a longer sentence was imposed as a consequence. The very fact that the sentencing judge made reference to Mr Chong’s role in the terms that he did certainly suggests to me that his Honour’s description was, to some extent at least, important to his conclusion.”

31. However, it is clear that a “sentencing judge is not bound to accept the Crown’s assessment of the objective gravity of an offence”: per Hoeben CJ at CL in Stojanovski v R [2013] NSWCCA 334 at [34]. One important aspect of that observation lies in the fact that there will necessarily, or at least usually, be a distinction between a Crown concession on a matter about the adoption of which the judge will have limited input, such as agreed questions of fact, and matters about the ultimate determination of which the judge retains a discretion. A submission by the Crown that a particular offence is of a particular level of objective seriousness could rarely in that sense qualify as a concession binding a sentencing judge unless the judge expressly indicated that he or she proposed to accept it or otherwise gave an intimation to the parties that he or she would act upon it. In those circumstances, a party might be denied procedural fairness, not as the result of the Crown’s “concession”, but as the result of the judge’s express or implied indication that he or she would adopt it.

32. I do not consider in this case that the words used by the Crown, that “the Crown agrees with my learned friend’s assessment that it’s below mid-range but not to any great extent”, were on their own or in the context of the proceedings as a whole capable of elevating the Crown’s statement to a concession that no other assessment of objective seriousness was open: see McClelland at [29]. The burden of Mr Brown’s submission is that because the Crown’s assessment of objective seriousness aligned with his own, it was impermissible for the judge for that reason alone to take any course other than to adopt it without giving notice of an intention to do so. However, it could hardly be contended by Mr Brown, if his Honour had said in terms, “Well, I hear what you both say on that topic, but it remains a matter for me to determine”, that Mr Brown’s counsel would have wanted to say more than he had already said or, more particularly, that he would have been denied procedural fairness if he was given no opportunity to do so. The fact that his Honour did not say anything to that effect is only consistent with what both parties must then have understood to be the position, that is, that the assessment of objective seriousness was and remained at all times a matter for his Honour to decide. Mr Brown’s counsel already had made his submission on that issue. A desire to make another or even better submission is not the same as being deprived by judicial silence or other conduct of an opportunity to make any submission.

31. Nor am I satisfied in any event that his Honour’s response to the Crown’s submission amounted to an indication that he had accepted the joint position of the parties. It seems clear to me that his Honour did no more than clarify at the sentencing proceedings what each counsel was submitting on the issue of objective seriousness. Nothing either said or left unsaid by his Honour could in my view have given the impression that he had accepted the submissions or that he had foreclosed his discretion to adopt a different assessment.

32. I do not consider that Mr Brown was denied procedural fairness. I would reject this ground of appeal.

Ground 2

35. Mr Brown made the following submissions.

36. First, the aggregate sentence imposed on Mr Brown was one of 7 years and 3 months with a non-parole period of 4 years and 10 months. The indicative sentences were 6 years and 3 months for Count 1, with a non-parole period of 4 years, and a term of 3 years for Count 2. Before applying the discount of 10 per cent for Mr Brown’s pleas of guilty, the starting point of the indicative sentence for Count 1 is approximately 6 years and 11 months and for Count 2 is 3 years and 4 months. Mr Brown submitted that these starting points for each indicative sentence were simply too high. Mr Brown submitted that this is relevant to this Court’s assessment of whether in the result the aggregate sentence is an unreasonable one.

37. Secondly, as both the Crown and Mr Brown’s counsel submitted at first instance, the objective seriousness of Count 1 is below mid-range:

1. Each of the two wounds occasioned to Mr Green’s shoulder did not require stitching.

2. The wound occasioned to his back, whilst serious, was expected to heal within one month.

3. There was no suggestion that the injuries occasioned to Mr Green would have any permanent or longer lasting physical effect.

4. Whilst the offence must have been premeditated to some extent, the weapon used by Mr Brown was makeshift (i.e. a pair of scissors) and it was left at the scene together with a baseball cap, each of which carried a DNA profile that inculpated Mr Brown.

5. The assault was not initiated by Mr Brown.

6. How Mr Brown exactly stabbed Mr Green is unclear. Whereas it may have been open for his Honour to find an intention on Mr Brown’s part to cause some harm (i.e. actual bodily harm) it was not the Crown case that Mr Brown intended by his actions to cause Mr Green any really serious injury.

38. Thirdly, again as both the Crown and Mr Brown’s counsel submitted at first instance, the objective seriousness of Count 2 is below mid-range. However, Mr Brown’s moral culpability for the offence is more important. In KR v R [2012] NSWCCA 32, Latham J provided a useful collection of authorities together with an analysis of the differences between liability and culpability in the context of the criminal law. Her Honour said this at [16]-[22]:

“[16] As James J observed (McClellan CJ at CL and Adams J agreeing) in R v Wright [2009] NSWCCA 3, when dealing with a joint criminal enterprise to cause grievous bodily harm which involved stomping on and kicking the head of the victim:-

‘28 If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90.

29 However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). (bold not in original)’

[17] This passage was also cited with approval in R v JW [2010] NSWCCA 49 at [162]. With respect to the identification of the role played by each participant in a joint criminal enterprise, Spigelman CJ said (Allsop P, McClellan CJ at CL, Howie and Johnson JJ agreeing) at [161]:-

‘It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, e.g. Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) (bold not in original)’

1. More recently, in R v Sukkar [2011] NSWCCA 140, Davies J summarised the position thus at [36]:-

   ‘To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). (bold not in original)’

[19] What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.

[20] Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.

[21] Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. ‘The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability’: R v O'Connor [1980] HCA 17 at [20]; 146 CLR 64 at 72, per Barwick CJ.

[22] Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors. [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149.”

39. Mr Brown played no part in the physical assault upon Ms Standford. This feature of Mr Brown’s case on Count 2 was critical in terms of assessing his moral culpability for the offence and the sentence to be imposed. Whilst his Honour was aware of the nature and extent of Mr Brown’s participation in Count 2, this feature of his case is not reflected in the aggregate sentence imposed.

40. Fourthly, the combined effect of Mr Brown’s pleas, his remorse, limited criminal history (and the aberrant nature of these offences in that context), the significant gap on his criminal record prior to the commission of these offences, and the strong evidence of improvement in custody and significant community support, all pointed to a less severe sentence than the one imposed at first instance. Whilst his Honour was only guarded about Mr Brown’s prospects of rehabilitation, it could not be said that on the balance of the evidence his prospects were poor. Mr Brown maintained that none of the favourable features of his case was reflected in the aggregate sentence imposed.

41. His Honour described the offences, and Mr Brown’s role in committing them, as follows:

“In relation to both offences, it is necessary to consider not only in relation to count 1 the nature of the grievous bodily harm suffered; in relation to count 2 the nature of actual bodily harm suffered, but all the circumstances in which the offence was committed.

In R v Douglas [2007] NSWCCA 31, Bell J said at [12] that in sentencing for a s 35(1) offence where the offender had struck the victim, the question of the number of blows and the circumstances in which they were delivered was relevant in assessing the objective seriousness of the offence.

As I have said in relation to the victim Mr Green, the offender stabbed him three times, twice to the shoulder and the third to his back, sufficiently deep to cause his left lung to deflate. However, I take into account that the prognosis for Mr Green was that his physical injuries should heal within a month. But that does not mean that the stabbing which deflated his lung was not a serious injury. It could well have been life-threatening; fortunately, because of almost immediate medical intervention, it was not.

In assessing the objective seriousness of the s 35(1) offence it is also to be taken into account that the offender ran in and stabbed the victim whilst the victim was being assaulted by two co-offenders. In other words, when the offender stabbed the victim Mr Green, Mr Green was almost totally defenceless. The offence is an offence of recklessly causing grievous bodily harm in company, but in assessing the objective seriousness of an offence committed in company it is relevant to take into account the role played by the offender and the co-offenders who were in company. This was not a case where the co-offenders were simply standing back ready to provide assistance if required. They were already assaulting the victim Mr Green, and, rendering him almost to a defenceless state, the offender runs in and stabs him three times.

The offence is also aggravated of course by the use of a weapon by the offender. The assault on Ms Stanford was particularly brutal, involving Ms Stanford being punched and kicked and causing her to fall to the ground.

The co-offender, Ms Kilby, continued to kick Ms Stanford while she was on the ground. Ms Stanford suffered multiple injuries to her face and body, causing bleeding and bruising.”

42. It is apparent, and was accepted by his Honour, that Mr Brown’s offending was, having regard to his criminal history, both uncharacteristic and influenced by drug use. His Honour then dealt with some important and well-understood sentencing considerations in the following remarks:

“I now turn to the offender’s plea of guilty. He was committed for trial in this Court on 13 September 2017. Some time after that he absconded on bail, and as I have said, and ultimately a warrant was issued and he went back into custody in January of this year. His trial had been listed on a number of occasions but ultimately – his trial was listed on 6 May 2019, but I understand there were some adjournments and ultimately he pleaded guilty on 15 May 2019.

In my view the offender is entitled to a reduction in the sentence I would otherwise impose upon him by 10% for the utilitarian value of his plea of guilty.

In that regard it is to be remembered that both of the victims would have been on standby waiting to give evidence at the trial about these horrific events and they were only relieved of that obligation once please of guilty were finally entered on 15 May 2019 around the time of the trial.

I accept that the offender is genuinely remorseful and contrite for his offending; I accept that from his letter to the Court, to the victims and from what he said to Mr Sheahan. He expressed shock to Mr Sheahan at the level of violence he perpetrated in this offending. However, I am somewhat guarded in assessing his prospects of rehabilitation and his risks of reoffending. He has demonstrated that he is capable of becoming abstinent from drugs for an extended period after he entered that rehabilitation program in 2009 in Canberra, however he relapsed.

It is also to be taken into account that he breached the conditions that he enter the rehabilitation program and he had to leave that program. He no doubt is aware that if he is to successfully rehabilitate himself from drug use that he will have to ensure that he does not return to associate with his co-offenders and others who may be using drugs because that is what in the past seems to have made him relapse to drug use and return to criminal conduct.

But also in assessing his prospects of rehabilitation and risk of reoffending I cannot ignore the fact that he has absconded whilst on bail for a significant period of time.

With that history I am unable to make a finding that he is at low risk of reoffending; it is obvious he is at a higher risk of reoffending than that.

There is no doubt, however, that this offending related to his drug use. He was using methamphetamines at the time heavily. As I indicated in the course of submissions this offending was somewhat out of character when one looks at his prior record, which does not involve this kind of violent offending.

Usually in sentencing the fact that someone is drug addicted is not a mitigating factor, however, when an offender is introduced by whatever means to drug use at a young age, which the offender was here, it cannot be said that the offender exercised informed consent in deciding to start to use drugs. And in such cases there can be some mitigation of the subjective case of the offender; see R v Henry (1999) NSWCCA 111 per Wood CJ at CL at [273].

I do therefore propose to mitigate to a modest degree the sentence I would otherwise impose because of his early introduction to drug use.”

43. Significantly in my view, his Honour had previously referred in commendable detail at pages 6 to 10 of his remarks on sentence to Mr Brown’s subjective case. At the risk of some repetition, it is instructive to include here precisely what his Honour said:

“I now turn to the subjective case of the offender. He was born in March 1984, he is now 35 years of age. He did not give evidence in the sentencing proceedings.

Tendered in his case is a report of Mr Patrick Sheahan, Forensic Psychologist, dated 8July 2019. By way of background Mr Sheahan states that the offender was born and raised in the Leeton area. Tragically the offender’s father died in a motor vehicle accident when the offender was only aged three. The offender’s mother re-partnered when the offender was seven years of age.

The offender told Mr Sheahan that he felt some resentment towards his step-father because he was not his real father. The offender reported that his home life was stable and he was well cared for. He said, however, that in his adolescence he became increasingly unstable and uncontrollable and left home at the age of 15, finding no stable accommodation and at times being effectively homeless.

The offender reported that he returned to his family for brief periods over the years, although he said he has maintained contact with his family in more recent times. Although he said after being charged with the current offences he pushed his family away for some 18 months, but now he speaks to his family on a daily basis and he reported a much improved relationship with his stepfather.

The offender described gratitude for the support of his family and said he intends to live with his family in Leeton or Winton after his release.

It is apparent from the report that the offender was doing well in his early years of schooling; however, when he was in Year 9 his behaviour deteriorated sharply on a background of increasing drug use. He was expelled midway through Year 10 after threatening teachers and he never returned to complete schooling education.

The offender reported having worked for approximately 50% of his adult life in farming, labouring, factory and warehouse roles. Mr Sheahan states that the offender’s employment has been undermined by mental illness and substance abuse. However, he has obtained qualifications for a forklift operator, white card, and certificate 2 in warehousing, but he has not worked for approximately three years.

The offender reported having two main relationships, with both his partners were drug users as well. He has two children, now aged ten and eleven from one relationship and a 14 year old son from another relationship. The offender said he was the primary carer for his two younger children in the years prior to 2017, but he said he handed the children back into their mother’s care in 2017 after he lost his job and relapsed back to drug use.

The offender said that he maintained a relationship with Ms Kilby between 2012 and 2017. He said that they both were abusing amphetamines at the time of the offences.

Mr Sheahan expresses the opinion that the offender suffered some sort of complex grief reaction following the death of his father and an emerging bipolar disorder further aggravated through poly-substance abuse.

In relation to Mr Sheahan’s reference to an ‘emerging bipolar disorder’ he states further that access to medical records would be helpful in adding clarity to the offender’s report of bipolar disorder. However, in the absence of a direct diagnosis Mr Keller of counsel, on behalf of the offender, indicated that he does not assert that the offender was at the time of the offending suffering a mental illness or disorder, such as would attract the principles on sentencing enunciated in such cases as DPP (Cth) v De La Rosa [2010] NSWCCA 194.

Mr Sheahan refers to the offender’s reported history of drug abuse. The offender said that he commenced to use cannabis at the age of 12 and that gradually increased to daily heavy use. He said he commenced to use amphetamines from the age of 13 and he began to engage in crime to support his drug habit. The offender was also abusing alcohol.

The offender reported attending an intensive residential rehabilitation program at the Canberra Recovery Service in 2009. He said he attended six months of the nine month program but was breached from the program prior to completion. He said that despite leaving the program he learnt much from participation in the program and was able to maintain abstinence from drugs for an extended period after he left and that he was assisted in that by psychiatric support.

However, the offender said he relapsed heavily back to methamphetamine use in 2017 in the context of relationship conflict, losing his job and lack of accommodation. He said he was using methamphetamines heavily at the time of his offending.

The offender said he detoxified over four months whilst on remand and maintained abstinence after being granted bail but relapsed heavily to drug use after breaching his bail by seeking contact with his co-offender, Ms Kilby.

In relation to that history I note that having been arrested and bail refused for these offences on 14 March 2017 the offender was granted bail on 20 July 2017, and he was finally re-arrested on 27 January 2019 and has been in continuous custody on remand since that date. That has obviously meant of course a considerable delay in the finalisation of these proceedings.

Mr Keller submitted that I should however, take into account that in that period between him being granted bail and being arrested on the warrant and returned to custody there was no further offending. That perhaps is a two-edged sword. It may be that the offender was being extremely careful not to be involved in any offending so that he may not risk being detected by the police and going back into custody for these matters. But I do not disregard the fact that he did not offend during that period.

Mr Sheahan states that the offender expressed an intention to participate in further drug and alcohol rehabilitation programs saying “I’ll do whatever it takes, I want to bring my family and my children back into my life”.

In relation to the offender’s mental health history the offender said he was hospitalised at the age of 25, secondary to serious suicidal ideation. He reported having trialled a range of medication in the last ten years, including a range of antidepressant drugs, Lithium and antipsychotic drugs.

He said he had ceased his medication in 2017 in the weeks prior to this offending, in the context of having returned to methamphetamine use. He said he did not take any regular medication until his re-admission to custody in January this year.

He said his current psychotropic medication has stabilised his mood and he currently feels well-adjusted.

Mr Sheahan’s references to the offender’s mental health history largely is reliant upon the offender’s self-reporting. Mr Sheahan states that a more informed understanding of the offender’s mental health history could be reached with access to hospital records and Justice Health records.

Mr Sheahan states that the offender acknowledged the seriousness of his offending and expressed shock at the violence of his actions. He states that the offender requires further drug and alcohol interventions and an emphasis on building resilience to accumulative stresses in his life.

Mr Sheahan recommends that the offender could participate in drug and alcohol programs whilst in custody, or a community-based rehabilitation program. He also states that adherence by the offender to his prescribed medication will also be a key factor.

Placed before me in the sentencing proceedings are letters from the offender to both the Court and to the victims. In his letter to the victims he expresses his remorse and sorrow for his offending and apologises for committing the offences.

I have also before me testimonials from his family members in which they indicate their continuing support for the offender.

The offender has a prior criminal record, however, certainly it is not of the seriousness of the offending before the Court today. I note particularly in his record a gap in offending between 2009 and the current offences, which coincides with that period immediately following his participating in the rehabilitation program in Canberra in 2009 but with the offender ultimately returning to drug use prior to committing these offences.”

44. It is obvious that his Honour was confronted with the exceedingly difficult task of accommodating Mr Brown’s very substantial subjective case with his Honour’s assessment of the objective seriousness of the offences. It should be noted that Mr Brown has not directly challenged his Honour’s view about objective seriousness, presumably upon the uncontroversial basis that it was quintessentially a matter for him to decide.

45. Nor does Mr Brown seek to identify particular individual errors in the way in which his Honour’s discretion was exercised. He maintains that the aggregate sentence imposed was in all of the circumstances manifestly excessive and plainly unjust.

46. In my view, the sentence at which his Honour arrived is disproportionate to the objective criminality of the events that constitute each count and to Mr Brown’s culpability. An aggregate sentence of over 7 years with a non-parole period of almost 5 years fails properly to take account of Mr Brown’s violent and emotionally impoverished upbringing, his personal circumstances that saw him descend into the abuse of ice, and all of the several compelling matters referred to at [44] to which his Honour referred in commendable detail.

47. As Mr Brown has emphasised, he played no active part in the physical assault upon Ms Standford that made up Count 2. Mr Brown clearly accepts that while this cannot diminish his legal liability for that offence in the circumstances, it necessarily reduces his moral culpability in accordance with the principles helpfully analysed by Latham J in KR v R. Without in any way attempting to diminish the severity of this offence, which his Honour described as “particularly brutal”, involving Ms Sandford being punched and kicked causing her to fall to the ground, it should be noted that Ms Sandford’s injuries were fortunately confined to unspecified “multiple injuries to her face and body, causing bleeding and bruising”.

48. Count 1 was clearly more serious. Mr Brown was the principal assailant and wielded the weapon that injured Mr Green. Fortunately for both Mr Brown and Mr Green, the injuries sustained by Mr Green were fortuitously quick to resolve with no long term physical effects.

49. Questions of accumulation and totality remain matters for consideration in assessing the appropriateness of an aggregate sentence, even though the indicative sentences are not themselves directly the subject of the appeal against such a sentence. I accept Mr Brown’s submission that his Honour’s sentence was in the circumstances of this case unreasonable and plainly unjust. Mr Brown should be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Re-sentence

50. For the purposes of this exercise I agree with and adopt all of his Honour’s findings. In that respect I specifically agree that his Honour’s characterisation of the objective seriousness of each count was open to him. However, I consider that a lesser sentence is warranted.

51. In my opinion, the following orders should be made:

1. Grant leave to appeal and allow the appeal.

2. Quash the sentence imposed by his Honour Marien SC A-DCJ on 9 August 2019.

3. In lieu thereof, sentence the applicant to an aggregate term of 6 years imprisonment commencing on 20 September 2018 and expiring on 19 September 2024 with a non-parole period of 3 years and 10 months expiring on 19 July 2022.

4. The indicative sentence for Count 1 is 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The indicative sentence for Count 2 is imprisonment for 2 years.

52. BEECH-JONES J: I agree with Harrison J.

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Amendments

01 July 2020 - Representation corrected

Decision last updated: 01 July 2020