Byron v The Queen

[2018] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Byron v R [2018] NSWCCA 239
Hearing dates:	15 October 2018
Date of orders:	24 October 2018
Decision date:	24 October 2018
Before:	Hoeben CJ at CL at [1] Price J at [2] Davies J at [3]
Decision:	(1) Leave to appeal granted.  (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – sentence – appeal – assault occasioning actual bodily harm – assault on taxi driver where applicant failed to pay fare – supplying a prohibited drug – street level dealer – where aggregate sentence of 19 months imposed to be served by way of intensive correction order – challenge by self-represented applicant to evidence relied upon by sentencing judge – assertions that applicant was a changed person now – challenge to ICO condition imposed by Community Corrections – whether length of ICO was manifestly excessive
Legislation Cited:	Nil
Cases Cited:	Hughes v R [2018] NSWCCA 2 Khoury v R [2011] NSWCCA 118 R v Fordham (1997) 98 A Crim R 359 Zreika v R [2012] NSWCCA 44
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Tony Byron (Applicant) Crown (Respondent)
Representation:	Counsel: In person (Applicant) C Curtis (Respondent)   Solicitors: Self-represented (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/18158 & 2017/86123
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 13 April 2018 Before: Haesler DCJ File Number(s): 2017/18158 & 2017/86123

Judgment

1. HOEBEN CJ AT CL:   I agree with Davies J and the orders which he proposes.

2. PRICE J:   I agree with Davies J.

3. DAVIES J:   On 29 June 2017 the applicant pleaded guilty in the Local Court to two offences as follows:

Count 1:   Assault occasioning actual bodily harm. The maximum penalty for this offence is five years’ imprisonment.

Count 2:   Supply a prohibited drug being 19 grams of cocaine. The maximum penalty for this offence is 15 years’ imprisonment and/or 2000 penalty units.

4. On 13 April 2018 he was sentenced in the District Court by Judge Haesler SC. When doing so his Honour took into account two offences on a Form 1 that were attached to Count 2. Those offences were:

(1)   Possess a prohibited drug being 0.31 grams of cocaine.

(2)   Deal with the proceeds of crime being $2,095 in cash.

5. Judge Haesler sentenced the applicant to an aggregate sentence of imprisonment for one year and seven months commencing 13 April 2018 and expiring 12 November 2019, to be served by way of an intensive correction order.

6. The applicant, now acting for himself, filed an application for leave to appeal against the sentence imposed on three grounds as follows:

1.   The presentence report (and subsequently, the ICO Assessment) tendered to the courts by Community Corrections were both inaccurate and provided an incorrect insight into my character and understanding of responsibility towards my offences for His Honour to see.

2.   The supervision order as outlined in the Assessment section of both the PSR and ICO Assessment are ineffective as I had already completed these measures of treatment, such as "engaging in psychological interventions to address current mental health concerns" throughout my year on bail.

3.   An insight into what I have been doing in the times before and since being sentenced. Conclusion.

7. At the outset of the hearing of the appeal, and because of the way the grounds of appeal and submissions were expressed, the presiding judge explained to the applicant the nature of the appeal process in this Court, and that on sentence appeals it was necessary to show error on the part of the sentencing judge. The applicant then sought leave to amend his grounds of appeal to add a further ground complaining about the length of the ICO, the proper formulation of which would be:

4.   The sentence is manifestly excessive.

8. The Crown did not oppose leave being given, and an order was made to that effect.

The offending

Count 1

9. At approximately 8:20pm on 17 January 2017 the victim George Germanos was driving his Silver Service taxi T9200 along Short Street, Birchgrove. The applicant signalled for the victim to stop and the applicant entered the cab via the rear passenger side door. The applicant directed the victim to take him to William Henry Drive, Ultimo.

10. At approximately 8:45pm the victim stopped the vehicle on William Henry Drive at the intersection of Bulwara Road, Ultimo. The applicant got out of the taxi without paying the fare. The victim also alighted from the taxi, approached the applicant and asked him to pay the fare. The applicant raised his arm and punched the victim in the face with a closed fist.

11. The impact caused the victim’s top front tooth to break in half. The tooth also pierced through the top lip causing a laceration approximately one centimetre in length. The victim fell to the ground, landing on his right side and causing grazes to his elbow.

Count 2

12. At approximately 3:40am on 18 January 2017 police responded to a call at an alleged break and enter at 80 Fig Street, Pyrmont. Whilst monitoring the area, police observed the applicant standing near the play equipment within Fig Lane Reserve, Pyrmont. Police approached the applicant who was holding a black Louis Vuitton clutch bag in his hand. The police observed the applicant to be noticeably sweating. He appeared to have dilated pupils and was visibly nervous. He also appeared to have a fresh laceration on the top side of his right hand.

13. Upon searching the applicant’s bag police located 28 small resealable bags containing a white powdery substance, $2,095 in cash, a black Nokia mobile phone, a Blackberry mobile phone and a white Apple iphone.

14. The applicant was arrested and taken to Day Street Police Station. Due to his level of intoxication he was held in custody until he was able to understand his rights.

15. The 28 resealable bags were later analysed and the contents were found to be cocaine with a total weight of 19 grams. Police subsequently obtained a search warrant for the applicant’s premises in Pyrmont. During the execution of the search warrant police located a pair of black jeans, inside of which there was another small resealable bag of white powder. Subsequent testing indicated that the substance was cocaine with a total weight of 0.31 grams.

The sentence proceedings

16. The applicant was legally represented at the sentence proceedings on 18 January 2018. The applicant did not give evidence. The sentencing judge had a pre-sentence report tendered by the Crown without objection. His Honour also had a report from a forensic psychologist, Dr Peter Ashkar, and medical certificates from Dr So dated 28 April 2017 and Dr Chow dated 1 May 2017, all tendered on behalf of the applicant. The effect of the medical certificates was that the applicant had suffered from psychosis since January 2017, and suffered from bipolar depression.

17. The applicant told the Community Corrections officer who prepared the pre-sentence report that at the time of the assault he was under the influence of both alcohol and cocaine, and he said that his alcohol use was a contributing factor to the assault.

18. The applicant also told the Community Corrections officer that his mental health issues commenced when he was approximately aged 19 years. He described symptoms of anxiety and depression, but he was not diagnosed with a mental illness at that time. He said that he did not start using cocaine until he was aged 21. He was born on 30 May 1995.

19. In relation to the assault the Community Corrections officer said this:

Mr Byron disputed the facts pertaining to the assault occasioning bodily harm offence. Mr Byron provided two different versions of the events during the course of this assessment. Whilst Mr Byron was able to acknowledge responsibility for his actions in relation to the assault matter, he attempted to justify his actions on both occasions attributing blame towards the victim.

20. The applicant was interviewed by Dr Ashkar for the purposes of his report on 15 December 2017. Dr Ashkar noted that the applicant denied feelings of anxiety and sadness/depression, and denied psychotic phenomena such as paranoid delusions and auditory hallucinations. Whether that was because of the anti-psychotic medication he had been given by Dr So was not made clear. Dr Ashkar noted that the applicant’s self-report about his condition and feelings, including no history of self-harming or suicidal behaviour, needed to be considered in the light of his reluctance to disclose his psychiatric history.

21. In relation to the assault offence the applicant told Dr Ashkar that he had drunk four or five glasses of wine on the afternoon of the offence but denied the use of cocaine. That was to be contrasted with what he had told the Community Corrections officer.

22. The applicant also denied the use of cocaine at the time he was approached by police in the park the following morning. He denied being affected by cocaine or any other illicit substance as the police facts had asserted.

23. Dr Ashkar said that the applicant required management of his psychotic disorder but his treatment needs were otherwise minimal. Management of his psychotic disorder would require psychiatric and psychological approaches. Dr Ashkar said the applicant would not have access to the treatment he needed in a custodial setting.

24. When counsel for the applicant tendered the report of Dr Ashkar at the sentence proceedings, the Crown took an objection on the basis that it disclosed the applicant as saying that he was selling the cocaine because he was effectively under duress to do so by his up-line supplier. His Honour said that there was no basis for an objection to the report, but if matters in it were not supported by other evidence it would be given little weight. The solicitor for the applicant then said:

Consistent with what your Honour has said it’s a matter of weight and certain claims if they are not supported by sworn evidence your Honour I just give them very little to no weight and that’s the approach your Honour would take.

25. Having heard submissions from the Crown, the sentencing judge then addressed the applicant’s solicitor and said that he considered the s 5 threshold had been crossed in relation to both matters, but that did not mean full-time custody. The solicitor conceded that the threshold had been crossed.

26. Towards the end of submissions his Honour indicated to the Crown that there was a strong case for special circumstances and the applicant needed supervision with the threat of full-time custody hanging over his head. In that way his Honour considered that the applicant was a reasonable candidate for an intensive correction order (ICO). The Crown agreed that an ICO was open. His Honour asked if the applicant’s solicitor wanted to be heard against that proposition and the solicitor said that he did not. In those circumstances his Honour adjourned the matter for the purpose of obtaining an ICO assessment.

27. The matter came back before Haesler DCJ on 13 April 2018. On that occasion the applicant appeared for himself. No explanation for that was provided. His Honour provided a copy of the ICO assessment report dated 12 April 2012 to the applicant and suggested that the applicant read the report. His Honour then adjourned for a period of time.

28. When the matter resumed, the report was tendered without objection. His Honour then delivered his Remarks on Sentence and imposed the sentence earlier mentioned, which was to be served by means of an ICO.

29. The report referred to the pre-sentence report, to an interview with the applicant, and to contact with his mother and sister, all of which indicated no change in his personal circumstances. The report noted that under the Level of Service Inventory – Revised, the applicant was at a medium risk of re-offending. His criminogenic needs were family/marital, companions, alcohol/drug problems and emotional/personal.

30. The report noted that the applicant had not accepted responsibility for the offence involving the taxi driver. In that way it was considered that supervision during the ICO would address issues of anger and violence, and encourage the applicant to consider the emotional content underpinning that act of aggression. In addition, the supervision would target relapse prevention in relation to alcohol and other drugs.

Remarks on sentence

31. His Honour rejected the suggestion that the assault on the taxi driver was provoked. His Honour noted that the applicant had attacked a person providing a valuable community service who by virtue of his profession and the time of night was vulnerable. A custodial sentence was required to denounce what was done so as to deter others as well as the applicant.

32. His Honour rejected the suggestion that the applicant continued to sell drugs out of fear. His Honour noted that the material in relation to that was not on oath and was not sustainable. His Honour found that the applicant sold the drugs because it enabled him to get drugs for his own use and to make a modest profit. His Honour said that his drug selling showed little sophistication, his business model was at best haphazard and was affected by his own drug use. In relation to the Form 1 offences his Honour noted that it was notorious that drug dealers had drugs and money on them or available to them, and much depended upon when in the economic cycle they were arrested. His Honour said that the possession of cocaine would not ordinarily involve a custodial sentence.

33. His Honour noted the reports of Dr Ashkar, the medical certificates from Dr So and Dr Cho, the pre-sentence report and the ICO assessment report.

34. His Honour concluded by saying that when he considered all of the various purposes of sentencing he ultimately had to make a decision which involved community protection. The sentence had to reflect the seriousness of the offences, but his Honour noted that the protection of the community was assisted by the successful rehabilitation of offenders, particularly first offenders or others who had not developed settled criminal habits.

Grounds of appeal

Ground 1.   The presentence report (and subsequently, the ICO Assessment) tendered to the courts by Community Corrections were both inaccurate and provided an incorrect insight into my character and understanding of responsibility towards my offences for His Honour to see.

35. The applicant submitted that the various reports contained many discrepancies and provided a conflicting character representation of the applicant. The applicant said that the report by Dr Ashkar was true and correct while the pre-sentence report and the ICO report were incorrect. The applicant’s written submissions then proceeded to point to specific matters in the latter reports which he said were inconsistent with what Dr Ashkar had reported.

Consideration

36. If there were differences between what Dr Ashkar reported and what was contained in the pre-sentence report and the ICO report, the appropriate time to point out and challenge, if necessary, any discrepancies was at the sentence proceedings. The most effective way of doing that would have been for the applicant to have given evidence of matters which he now challenges in the pre-sentence report. To some extent differences between the pre-sentence report and Dr Ashkar’s report were pointed out to the sentencing judge. Further, when the matter came back before Haesler DCJ on 13 April 2018 and the ICO report was tendered the applicant made no objection to the report.

37. The applicant said that he was not really aware of all that was going on with his case. He did what the solicitor told him to do and did not read all of the relevant material. Since the applicant is now representing himself, it is necessary to state that ordinarily a party to legal proceedings, such as the applicant, is bound by what is done on their behalf by their lawyers. The applicant appears to be saying that he left the matter up to his solicitor.

38. During the sentence proceedings, the applicant’s solicitor made concessions and did not raise objections to documents. He prepared written submissions and addressed his Honour in amplification of those submissions. All of those actions appear to have been appropriate.

39. The applicant is now seeking by this ground of appeal to re-litigate the sentence proceedings.

40. In Zreika v R [2012] NSWCCA 44 Johnson J (McLellan CJ at CL agreeing) said at [81]:

The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].

41. Similarly, in Khoury v R [2011] NSWCCA 118 Simpson J (Davies J and Grove AJ agreeing) said at [104]:

The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals.

42. The applicant at the hearing of the appeal sought to rely on an affidavit recently sworn by him which dealt with the applicant’s present position regarding study, employment and treatment.

43. In R v Fordham (1997) 98 A Crim R 359 Howie AJ (Hunt CJ at CL and Smart J agreeing) said at 377:

Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

44. No basis is shown for receiving the evidence in this Court except on the usual basis where error is shown. No miscarriage of justice has taken place particularly given that the applicant submitted:

I would also like to stress that I am not unhappy with my sentence.

45. Moreover, the applicant’s written submissions make clear that he chose not to challenge those reports when they were before the sentencing judge. He said this:

I would have voiced my current concerns in court upon receiving both the PSR and ICO assessment for the first times respectively, however it was my first time through the judicial system and I was afraid of how speaking out would have been perceived, hence me writing this to the courts as I submit my appeal.

46. This ground should be rejected.

Ground 2:   The supervision order as outlined in the Assessment section of both the PSR and ICO Assessment are ineffective as I had already completed these measures of treatment, such as "engaging in psychological interventions to address current mental health concerns" throughout my year on bail.

47. The applicant submitted that four days after his arrest he began seeking treatment for his mental health conditions. He commenced sessions with Dr So and was prescribed Latuda. In addition, the applicant submitted that he ceased using alcohol or illicit substances.

47. He submitted that he feels that the recommendations outlined in both the pre-sentence report and the ICO report of “engaging in psychological interventions to address current mental health concerns, in addition to tailored interventions to address substance use and pro-social relationships” will be ineffective as these issues were met many months in advance. The applicant submitted that he has been ordered to complete the EQUIPS program by Community Corrections. However, he submitted that he had a complete understanding of all the topics that are to be addressed in that program. In that way he feels the program would be ineffective and a waste of resources.

48. The applicant submitted that he was now a different person from the person he was at the time of the offences.

Consideration

50. In the report tendered on the applicant’s behalf by Dr Ashkar, Dr Ashkar said this:

He requires management of his psychotic disorder but his treatment needs are otherwise minimal. Management of his psychotic disorder will require psychiatric and psychological approaches (psychiatric treatment for the ongoing assessment of his psychotic disorder and medication needs, and psychological treatment for the management of social/interpersonal, social-cognitive, and emotional difficulties associated with his psychotic disorder).

Mr Byron will not have access to the treatment that he needs in a custodial setting because of the limited resources available to him there. His general practitioner will be able to coordinate his treatment within the community … . A 12 month period of supervision (such as that which can be provided by Probation and Parole Services) is recommended to support his engagement in psychiatric and psychological treatments (and to ensure that he does not fall victim to complacency with regard to his substance use) within the community post-sentencing and/or post-release.

51. The applicant’s submission appears to ignore what Dr Ashkar said in his report and what was put forward on the applicant’s behalf at the sentence proceedings.

52. Further, the applicant’s submissions appear to be suggesting that fresh evidence ought to be received about his present position to suggest that he no longer needs the treatment which was recommended both by Dr Ashkar and those who prepared the pre-sentence and ICO reports. No basis is shown for receipt of that fresh evidence.

53. Finally, it is apparent from the sentencing remarks that his Honour did not impose a requirement to undertake the EQUIPS program. Where the requirement to undertake the EQUIPS program was not a condition imposed by the sentencing judge, this Court has no jurisdiction to interfere in the administration of the ICO.

54. This ground should be rejected.

Ground 3:   An insight into what I have been doing in the times before and since being sentenced. Conclusion.

55. Both the wording of this ground of appeal and the submissions put forward by the applicant indicate that this is not a ground of appeal as such. Rather, the applicant by raising this matter seeks to inform this Court about his present position. It is not suggested in his written submissions that any error was made by the court below.

56. Evidence of the applicant’s present situation may ordinarily only be given if this Court comes to re-sentence an offender. No error has been demonstrated in relation to grounds 1 and 2. In those circumstances the matters raised by the applicant in relation to this ground may not be considered by this Court.

57. I would reject this ground of appeal.

Ground 4:   The sentence is manifestly excessive.

58. The applicant did not submit that he should not receive an ICO, but only that the period of the order was too long. He submitted that it was no longer necessary because of the treatment he has undergone, that he was now a different person, and that the conditions of the order were interfering with other matters he wished to pursue. He submitted that the length of the sentence was counterproductive towards his attempts at rehabilitation, particularly because he has to set aside one day a week as part of his compliance with the ICO.

Consideration

59. If, as the applicant asserts, he has undertaken treatment which has had a beneficial effect, that tends to suggest that the making of the ICO has had, or is having, the effect that the sentencing judge hoped it would. However, unless the applicant demonstrates error in the sentence imposed or unless he is permitted to lead fresh evidence, this Court cannot consider his present position.

60. In Hughes v R [2018] NSWCCA 2 the Court (Payne JA, RA Hulme & Garling JJ) said at [86]:

When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

61. In my opinion the sentence is not manifestly excessive. The assault was a serious one on a vulnerable person who did no more than seek to have the applicant pay the fare for having travelled in his taxi. There was contradictory evidence before the sentencing judge about whether the applicant accepted responsibility for his actions in that regard. That matter could have been clarified if the applicant had given evidence. In relation to the drug supply, the extent of the applicant’s involvement in street level dealing is demonstrated by the number of phones found in his possession at the time of his arrest, and by the fact that he engaged in it, not simply to obtain drugs for his own use but also to make a profit.

62. In many respects, the applicant was fortunate the sentencing judge was prepared to consider an ICO. A sentence of fulltime imprisonment would not have been outside the range of appropriate sentences for the two discrete acts of offending.

63. The applicant’s submissions, concentrating on what he sees in his present rehabilitation, overlook the other purposes of sentencing such as punishment for wrongdoing, denunciation of criminal actions, recognition of harm to victims, as well as deterrence.

64. The applicant does not demonstrate that the sentence was manifestly excessive. I would reject this ground.

Conclusion

65. I propose the following orders:

1. Leave to appeal granted.

2. Dismiss the appeal.

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Decision last updated: 24 October 2018