Cole v The Queen

[2010] NTCCA 2

Cole v The Queen [2010] NTCCA 2

PARTIES:  KENNETH ALAN COLE

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CCA 20 of 2009 (20818401)

DELIVERED:  8 June 2010

HEARING DATES:  8 June 2010

JUDGMENT OF:  RILEY, SOUTHWOOD AND KELLY JJ

APPEALED FROM:  MARTIN (BR) CJ

CATCHWORDS:

Cheung v The Queen (2001) 209 CLR 1

R v De Simoni (1981) 147 CLR 383

REPRESENTATION:

Counsel:

Appellant:I Read

Respondent:  Dr N Rogers SC

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Ril1020

Number of pages:  7

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Cole v The Queen [2010] NTCCA 2

No. CCA 20 of 2009 (20818401)

BETWEEN:

KENNETH ALAN COLE

Appellant

AND:

THE QUEEN

Respondent

CORAM:    RILEY, SOUTHWOOD and KELLY JJ

REASONS FOR JUDGMENT

(Delivered 8 June 2010)

The Court:

1. On 29 September 2009, the applicant was found guilty by a jury of the offence of unlawfully causing grievous harm to NM contrary to s 181 of the Criminal Code. On 8 October 2009 he was sentenced to imprisonment for a period of seven years with a non-parole period of three years and six months. He has made application for an extension of time within which to appeal against sentence and has also sought leave to appeal as is required by s 410(c) of the Criminal Code.  These matters have been argued before the court along with the merits of the appeal.

2. There is one proposed ground of appeal being that the learned Chief Justice erred in finding that the offender intended to cause grievous harm and in sentencing the offender on that basis, contrary to the principles stated in R v De Simoni.[1]

3. The offending occurred on 25 September 2005 at Alice Springs.  On that occasion the applicant, who was affected by alcohol, was armed with a long handled shovel.  He struck his victim, a woman in her thirties, on three occasions.  The first blow was directed toward the head of the victim but she put her arms up in defence and was struck on her arms.  The second blow struck the victim in the region of her right eye and the third blow struck her legs.  On each occasion the applicant raised the shovel above his head, with two hands around the handle, and brought it down with force on to the victim.  At the time the victim was blind in her left eye and had poor sight in her right eye.  She was drunk and defenceless.  One of the blows from the shovel struck her in the area of the bridge of her nose and her right eye causing damage to her eyeball and destroying the little sight that remained in that eye.  As a consequence of the assault she is totally blind.

4. The applicant was convicted of an offence under s 181 of the Criminal Code which, at the time, provided that any person who unlawfully caused grievous harm to another is liable to imprisonment for 14 years. For the purpose of this appeal this offence is to be considered along with that found in s 177 of the Criminal Code which, at the time provided inter alia, that any person who, with intent to cause grievous harm, causes grievous harm to any person is guilty of a crime and is liable to imprisonment for life. It was submitted on behalf of the applicant that in the sentencing process the learned judge made findings consistent with an offence under s 177 and sentenced the applicant under findings consistent with that provision rather than for the offence of which he was actually convicted.

5. The sentencing remarks, which give rise to the complaint, appear in the following paragraphs:

   As to your intention at the time you struck the blow, the reasoning of the jury is unknown.  The jury might have been of the view that you intended to cause grievous harm, or they may have had a doubt about that intention, but have found that you foresaw the causing of such harm as a possible consequence.  Some members of the jury might have been satisfied of the specific intention, while others were only satisfied of the necessary foresight.

   If you had swung a single, around the arm type blow at the body of the victim, and then desisted, bearing in mind the likely effect of alcohol and your general behaviour, I would not have been satisfied that you possessed a specific intention to cause grievous harm.  However, I am satisfied beyond reasonable doubt, that you stood in front of the victim, and on three occasions, raised the shovel in front of you and above your head and brought it down with the intention of striking the victim with the blade.  I am satisfied that the first blow was aimed in the general area of the head, was deflected when the victim put her arms up in the defensive fashion.  Further I am satisfied that when you struck the second blow, which impacted in the area of the bridge of the nose and the right eye, you struck the second critical blow with the intention to cause grievous harm.  In your angry state you were not satisfied with the first blow which had struck the arms, and you raised the shovel a second time and brought it down the second time with the specific intention of causing grievous harm.

   Every crime of causing grievous harm or serious harm is a serious crime but, as with other offences, there is a scale of seriousness.  Your offending, Mr Cole, is in the more serious category.  Although the victim spoke to you, in reality, she did nothing to provoke you.  She was loud and drunk, but she was no threat to you whatsoever.  She was utterly defenceless.  You used a heavy and dangerous implement and you caused a catastrophic injury.  As I have said, the effect of your conduct was to leave the victim totally blind.

6. The complaint made on behalf of the applicant is that the learned sentencing judge found that the consequence of serious harm was specifically intended and, whilst that finding was open, such a finding was not required to satisfy the elements of the offence of unlawfully causing grievous harm contrary to s 181 of the Criminal Code. It was submitted that such a finding is only necessary for the specific intent provisions of s 177 of the Criminal Code. Section 181 of the Criminal Code requires only that the act be unlawful rather than that the consequence of grievous harm be intended.  It was submitted that the findings of the learned sentencing judge impute an intention of greater culpability than that of which the applicant was convicted and, therefore, resulted in a sentence higher than the learned sentencing judge would otherwise have imposed.  It was argued that the findings, which may have been open on the evidence, placed the sentencing judge in the difficult position of taking into account the circumstances of the offending when there was a tension between those circumstances and “the overriding principle that an offender should not be punished for an offence for which he has not been convicted”. 

7. The principle from R v De Simoni upon which the applicant relies is that expressed by Gibbs CJ[2] where his Honour said:

   However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence of which he has not been convicted.  Section 582 reflects this principle.  The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

   His Honour went on to say:[3]

   It is not only in cases in which the offence has been accompanied by circumstances of aggravation that a trial judge may be required, in sentencing, to take an artificially restricted view of the facts.  This will be so also in cases where the jury's verdict is inconsistent with the view of the facts that the judge himself has formed, for the judge cannot act on a view of the facts which conflicts with the jury's verdict.  However, where the Crown has charged the offender with, or has accepted a plea of guilty to, an offence less serious than the facts warrant, it cannot rely, or ask the judge to rely, on the facts that would have rendered the offender liable to a more serious penalty.

8. Section 181 of the Criminal Code is in the following terms:

   Any person who unlawfully causes grievous harm to another is guilty of a crime and is liable to imprisonment for 14 years.

9. In the aide memoire provided to the jury the learned judge identified the elements of the offence.  There is no challenge to the accuracy and suitability of the aide memoire.  His Honour there correctly identified the onus upon the Crown, in order to establish necessary intention, in the following terms as being to prove:

   (a)     the accused intended to cause grievous harm to (the victim); or

   (b)(i)     the accused foresaw the causing of grievous harm as a possible consequence of striking (the victim); and

   (ii)in all the circumstances, including the chances of grievous harm occurring and the nature of that grievous harm, an ordinary person similarly circumstanced and foreseeing grievous harm as a possible consequence of striking (the victim), would not have struck (the victim).

10. It is apparent that an offence contrary to s 181 of the Criminal Code is satisfied, inter alia, if the Crown has proved beyond reasonable doubt that an accused person intended to cause grievous harm to the victim.  An offence under that section requires the Crown to prove beyond reasonable doubt that either the applicant intended to cause grievous harm to the victim or foresaw the causing of grievous harm to her as a possible consequence of his conduct.  Both of those options were left to the jury in the course of the trial.  The jury having determined that the applicant was guilty of the offence, it then became the responsibility of the trial judge to determine the appropriate sentence and, in doing so, to find the degree of culpability.  This is a matter for the judge alone.[4]

11. In the present case the learned sentencing judge expressly found that the applicant intended to cause grievous harm to his victim. He provided reasons for his findings and those reasons were consistent with the verdict of the jury. There has been no challenge to the findings. Those findings were consistent with the mental element required for an offence under s 181 of the Criminal Code.  His Honour was not bound to accept the less serious conclusion that the accused foresaw the causing of grievous harm as a possible consequence of his conduct.

12. The applicant has not been sentenced on the basis that he was guilty of an offence of which he has not been convicted. The applicant was sentenced on the basis that he caused grievous harm with an intention to cause grievous harm. Such an offence is an offence within the meaning of s 181 of the Criminal Code.  The principle in R v Di Simoni does not have application. The fact that the applicant could have been dealt with under s 177 of the Criminal Code is not to the point. 

13. There is no suggestion that the learned sentencing judge proceeded to sentence under s 177 or that he regarded the maximum penalty as being imprisonment for life rather than the maximum provided under s 181 of imprisonment for fourteen years.

14. There is no challenge to the sentence itself. 

15. In the circumstances the application is without merit.  An extension of time should be refused and leave to appeal should not be granted. 

--------------------------------

[1] (1981) 147 CLR 383.

[2] At 389.

[3] At 392.

[4] Cheung v The Queen (2001) 209 CLR 1.