Duncombe v R

[2013] NSWCCA 271

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Duncombe v R [2013] NSWCCA 271

Hearing dates:

21 October 2013

Decision date:

14 November 2013

Before:

Hoeben CJ at CL at [1];
Johnson J at [2];
Bellew J at [66]

Decision:

1. Application for extension of time to appeal against sentence refused.

2. The Court recommends to the Department of Corrective Services that the Applicant be provided with a proper opportunity to undertake, at the earliest possible time, a custodial program or programs with respect to anger management and violent offending.

Catchwords:

CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal - Applicant sentenced in December 2010 - Applicant pleaded guilty to one count of causing grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900 - offence subject to a standard non-parole period - offence of affray taken into account on Form 1 - sole ground of appeal asserted Muldrock error - held that sentencing Judge applied two-stage approach - whether lesser sentence warranted - nature of offence under s.33 - wide gap between maximum penalty of 25 years and standard non-parole period of seven years - attack with sledgehammer to head of victim - offence committed in breach of conditional liberty - limited intellectual capacity of Applicant - held no lesser sentence warranted - insufficient prospects of success - application for extension of time in which to appeal refused

Legislation Cited:

Crimes Act 1900
Criminal Appeal Act 1912
Firearms Act 1996

Cases Cited:

Abdul v R [2013] NSWCCA 247
AM v R [2012] NSWCCA 203
Anderson v R [2008] NSWCCA 211
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Hamieh [2010] NSWCCA 189
R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94
R v Najem [2008] NSWCCA 32
R v Wright [2009] NSWCCA 3
Sproates v R [2009] NSWCCA 29
Thalari v R [2009] NSWCCA 170; 75 NSWLR 307

Texts Cited:

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Category:

Principal judgment

Parties:

Sean Andrew Duncombe (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms BJ Rigg (Applicant)
Ms N Noman SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/11080

Publication restriction:

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 Decision under appeal 

Citation:

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Date of Decision:

2010-12-15 00:00:00

Before:

Freeman DCJ

File Number(s):

2010/11080

Judgment

1. HOEBEN CJ at CL: I agree with Johnson J and join in his Honour's recommendation that the Applicant be provided with an opportunity to undertake a program with respect to anger management and violent offending while in custody. This should occur as soon as possible.

1. JOHNSON J: The Applicant, Sean Andrew Duncombe, seeks an extension of time to appeal with respect to a sentence imposed in the District Court on 15 December 2010.

The Offence and Sentence

1. The Applicant pleaded guilty to a charge of inflicting grievous bodily harm with intent to cause grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900, an offence punishable by 25 years' imprisonment with a standard non-parole period of seven years.

1. The Applicant asked the sentencing Judge to take into account on a Form 1 an offence of affray which, when prosecuted separately, carries a maximum penalty of 10 years' imprisonment.

1. Taking into account the matter on the Form 1, the Applicant was sentenced to imprisonment comprising a non-parole period of five years commencing on 3 May 2010 and expiring on 2 May 2015, with a balance of term of three years commencing on 3 May 2015 and expiring on 2 May 2018.

The Present Application

1. The evidence on this application reveals that the Applicant informed his solicitor at the time of sentence in December 2010 that he wished to appeal, but that legal advice provided to the Applicant was that a sentence appeal would not be successful. No appeal was brought by the Applicant to this Court.

1. In April 2013, the Applicant heard that Legal Aid NSW was reviewing sentences in light of the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock").

1. Thereafter, on 28 June 2013, Notice of Application for an Extension of Time to Seek Leave to Appeal was filed in this Court.

1. Accordingly, the application was brought two years and six months after sentence was imposed in the District Court. The ground of appeal sought to be advanced asserts Muldrock error - that the sentencing Judge erred in the way in which the applicable standard non-parole period was taken into account on sentence. The concept of Muldrock error was considered in Abdul v R [2013] NSWCCA 247 at [19]-[28].

1. In Abdul v R at [42]-[53], the Court considered the principles to be applied where an extension of time is sought to appeal in a case such as this. This approach will be followed in determining the present application.

Facts of the Offence

1. The sentencing Judge drew on an Agreed Statement of Facts for the purpose of finding facts on sentence.

1. On the afternoon of Sunday 13 September 2009, the Applicant (then aged 21) was present in the family home at Brushgrove (near Grafton), also occupied by the Applicant's mother, sister and brother.

1. At about 4.00 pm, the victim, Trevor Cooke (hereafter "the victim" or "Mr Cooke") (then aged 49), was sitting on the rear veranda of his neighbouring premises. The victim and a friend, Michael Cairns, heard a loud commotion coming from the Applicant's house. Mr Cairns went to investigate the noise which sounded like a domestic argument. He observed a man holding a female by the neck with both hands over the veranda railing of the Applicant's home. The female was believed to be the Applicant's sister, although the identity of the male was unknown (it was not the Applicant).

1. Mr Cairns continued walking towards the Applicant's property, accompanied by a 16-year old girl who had been on the street. As Mr Cairns approached the boundary fence, the Applicant, numerous members of the Applicant's family and unknown others at the premises took exception at Mr Cairns' concern and commenced a verbal tirade in his direction, along with threats of violence.

1. About this time, the victim walked out on the roadway holding a wooden children's baseball bat which he leaned on near the boundary alignment of his property. The Applicant commenced to goad the victim to fight, accompanied by a tirade of verbal abuse, to which the victim did not respond. The 16-year old girl was also subjected to verbal abuse and offers of violence from the Applicant, to which she responded in kind.

1. About this time, the Applicant armed himself with a builder's level. He was waving this about in a threatening manner on the roadway in front of the victim and his friends, making verbal threats towards them.

1. The Applicant then produced a sledgehammer and a 180-centimetre long steel crowbar, which he used to threaten and intimidate those who were present. The Applicant did this by slamming the sledgehammer into the roadway and using the crowbar as a spear, throwing it into the roadway a short distance in front of the victims.

1. The victim and those with him stood on the roadway in front of their property, whilst the Applicant was behaving in this aggressive manner. This behaviour constituted the offence of affray taken into account on a Form 1.

1. At this point, the Applicant's father, Donald Duncombe, approached the victims and directed abuse at them, challenging Mr Cooke to fight and use the baseball bat, whilst shoving and pushing the victim. Several other males and females from the Applicant's family and friends joined in the abuse and threats towards the victims. The women from the Applicant's premises were directing their abuse and threats towards the 16-year old girl, whilst the males were directing threats and abuse towards Mr Cooke and Mr Cairns.

1. The incident continued for a number of minutes, and reached a point where Donald Duncombe ripped the shirt from Mr Cooke. Donald Duncombe then attacked Mr Cooke, swinging punches at him and the two men fell to the roadway.

1. The Applicant and his brother rushed towards the victim.

1. During the wrestle, Mr Cooke got on top of Donald Duncombe and was holding him to the ground. The Applicant raised the sledgehammer above his head and struck Mr Cooke a forceful blow to the back whilst he was on the ground. The victim screamed in pain and rolled away from Donald Duncombe. The victim lay helpless on the ground.

1. At this point, the Applicant again swung the sledgehammer at Mr Cooke and this time it glanced off the right side of the head and face of the victim.

1. The Applicant raised the sledgehammer above his head in an attempt to inflict a third blow to Mr Cooke, who was still lying helpless on the ground. However, a witness from a neighbouring home intervened and grabbed hold of the handle of the sledgehammer and prevented this blow.

1. The Applicant and others then returned to the Duncombe house, leaving the scene.

1. Mr Cooke was admitted to Grafton Base Hospital and was found to have multiple bruises and contusions to his back and abrasions to both knees. Further examination revealed that he had fractures of the spinus processes of T5 and the lateral processes of T6, T7 and T8, and a left-side rib fracture. The victim remained in hospital for nine days, until 22 September 2009, with a chest tube in place for several days because of a continued leakage of air from his lung. The chest tube was removed on 21 September 2009.

1. At the time of the commission of the offence on 13 September 2009, the Applicant was subject to a suspended sentence of nine months' imprisonment for destroying or damaging property, and a sentence of nine months' periodic detention following call-up for break, enter and steal (both sentences imposed in the Grafton Local Court on 20 April 2009).

1. The Applicant fled after the offence and was arrested in the Northern Territory on 16 January 2010. He was returned to New South Wales.

1. Following revocation of the Applicant's parole by the State Parole Authority, the Applicant served a sentence comprising a non-parole period of three months and 17 days commencing on 19 January 2010 and expiring on 5 May 2010, with a balance of term expiring on 6 August 2010.

1. As noted, the sentencing Judge directed that the sentence under challenge date from 3 May 2010.

Has Muldrock Error Been Demonstrated?

1. The Applicant contends that Muldrock error is demonstrated in this case because:

(a)   the sentencing Judge adopted a two-stage approach to sentencing;

(b)   the non-parole period was accorded determinative significance in the sentencing process.

1. The Crown contends that no Muldrock error has been demonstrated.

1. Detailed written submissions were filed for the Applicant and counsel supplemented these with oral submissions at the hearing of the application. It is not necessary to recount those submissions for the purpose of determining the present application.

1. It is necessary to consider the remarks on sentence as a whole, and to read them fairly, for the purpose of determining whether error has been demonstrated.

1. Following a recital of the facts, his Honour stated (ROS4):

"The offence under s 33 carries the potential for a maximum term of imprisonment of twenty five years and it is subject to a standard non-parole period of seven years. In those circumstances it is necessary to identify the objective criminality of the offender on this occasion and to gauge it against the mid range of objective seriousness for offences under this section."

1. Thereafter, his Honour adverted to a number of features of the offence, including the use of a weapon which was capable of inflicting catastrophic harm to the victim, the fact that the attack was perpetrated upon a man who was already in a vulnerable position (lying on the ground), the nature of the blows struck and the fact that the third blow was prevented by intervention of a third party, and not as a result of the Applicant desisting from the attack.

1. His Honour characterised the injuries to the victim as being "clearly in excess of the minimum required to meet the criterion of really serious physical harm".

1. Reference was made to the Applicant's mental condition, as revealed in a psychological report dated 28 May 2010 of Dr Stuart Mann. His Honour noted that the Applicant suffered from a mental condition with a number of components, including dependence on psychoactive substances and a dependence on alcohol. His Honour referred expressly to the Applicant's cognitive disorder arising from a physical attack upon him when aged about 13 years. As his Honour observed, the Applicant had been assessed as being of below-average intelligence, and his capacity for self-control and rational evaluation were compromised. The sentencing Judge accepted that there was "a causal connection between the prisoner's mental condition and his commission of this crime" and that "this condition lowers the objective criminality of his acts" (ROS5).

1. In a passage which the Applicant contends reveals error, his Honour said (ROS5-6):

"Taking all of these matters into consideration I would fix the objective criminality of this offence as being slightly below the mid range for offences of this nature. The prisoner's counsel Mr Priestley submitted that as against the standard non-parole period of seven years such an analysis as that which I have disclosed might be quantified at six years. I agree that represents a fair appraisal of the culpability of this offender. I stress however that this is to be viewed not simply against the standard non-parole period but against the overall maximum penalty of twenty five years. I have not been distracted from consideration of that penalty by over concentration on the standard non-parole period."

1. Reference was then made to a submission by the Applicant's counsel in the District Court that his subjective case "might reduce the appropriate sentence to a substantial extent". Reference was made to the Applicant's youth and family support, together with other aspects of the psychological report.

1. His Honour had regard to the Applicant's late plea of guilty which attracted a discount of not more than 10%. The sentencing Judge noted that no expression of remorse or contrition had been directed to the Court by the Applicant, although such an expression was contained in the psychological report.

1. His Honour referred to the Applicant's criminal history, which provided no assistance to the Applicant. His Honour pointed to a period of abstinence whilst the Applicant was in the Northern Territory, after departing this State in breach of his obligation to attend periodic detention after 13 September 2009.

1. In all the circumstances, the sentencing Judge assessed the Applicant's "prospects of rehabilitation as fair". Reference was made, in this respect, to the Applicant's youth and his below-average intellectual capacity. As a result of that disadvantage, his Honour considered that the Applicant was "not a completely suitable medium for the exhibition of the full force of general deterrence" although personal deterrence did "loom somewhat more importantly". Regard was had to the fact that the offence was committed whilst the Applicant was subject to conditional liberty.

1. His Honour had regard to the revocation of the Applicant's parole in determining the commencement date of the present sentence. A finding of special circumstances was made, to take account of the Applicant's "clear need for parole and supervision on release and taking into account also his youth and prospects of rehabilitation" (ROS8).

1. I am satisfied that his Honour utilised a two-stage approach to sentence in this case. His Honour identified a non-parole period following an examination of the objective circumstances, before turning to other factors which bore upon the fixing of the sentence to be passed. Of course, this is unsurprising given the recognised approach to sentencing for standard non-parole period offences before the decision in Muldrock.

1. An error of this type may be regarded as a process error, unless the second form of Muldrock error (at [31](b) above) is also established. This is because it is necessary for the Applicant to establish material error in accordance with the principles in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284. In cases where the standard non-parole period has been accorded determinative significance in the sentencing exercise, then material error may be demonstrated readily. Of course, it then becomes a matter for this Court, acting in accordance with the principles in Baxter v R, to determine whether some other sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912.

1. I am not satisfied that the second form of Muldrock error has been demonstrated in this case. The sentencing Judge did not accord determinative significance to the standard non-parole period.

1. As an examination of the remarks on sentence makes clear, his Honour was very much alive to the two statutory guideposts, the maximum penalty and the standard non-parole period.

1. In the case of offences under s.33 Crimes Act 1900, this Court has noted the wide gap between these two guideposts: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [36]-[38]; Anderson v R [2008] NSWCCA 211 at [17]; R v Wright [2009] NSWCCA 3 at [19]; Sproates v R [2009] NSWCCA 29 at [43].

1. In the context of the offence of possess pistol contrary to s.7 Firearms Act 1996, it has been said that a maximum penalty of 14 years and a standard non-parole period of three years constitute "two irreconcilable standards": R v Najem [2008] NSWCCA 32 at [38]; Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 at 320 [84]-[85].

1. A similar comment was made concerning a maximum penalty of 14 years and a standard non-parole period of four years, for car rebirthing contrary to s.154G Crimes Act 1900, where it was said that it was "difficult to reconcile" these two periods: R v Hamieh [2010] NSWCCA 189 at [54]-[56].

1. A similar observation may be made concerning the respective periods of 25 and seven years for a s.33(1)(b) offence such as in this case. Concentration upon the standard non-parole period may serve to distract from the maximum sentence, in a manner which may operate in an unduly favourable fashion to an offender. The sentencing Judge in this case was alive to this consideration (see [39] above).

1. Despite that wide gap, it is, of course, necessary for a sentencing court to have regard, and give appropriate weight, to both periods. Undue focus on the standard non-parole period may serve to distract from the proper role of the maximum penalty on sentence.

Should This Court Grant an Extension of Time to Appeal?

1. I am far from satisfied that any lesser sentence is warranted in law for the purpose of s.6(3) of the Act.

1. In AM v R [2012] NSWCCA 203, with the concurrence of McClellan CJ at CL and Garling J, I stated at [67]-[68]:

"67 The maximum sentence of 25 years' imprisonment indicates the seriousness with which an offence under s.33 is regarded: R v Zhang at [28]. As Howie J observed in R v Zamagias [2002] NSWCCA 17 at [11], the offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment.

68 The seriousness of s.33 offences is emphasised, as well, by the intention required to commit an offence under the section. Intention to cause grievous bodily harm is the mental element for murder, in the event that the victim died: R v Zoef [2005] NSWCCA 268 at [113]; R v Mitchell at 101 [27]. It is this mental element that makes an individual offender liable to a maximum penalty of 25 years, as opposed to 10 years for a s.35(2) offence of recklessly inflicting grievous bodily harm: R v Mitchell at 101 [27]."

1. A breadth of conduct and consequences is comprehended by s.33 Crimes Act 1900. The extent of injuries sustained by a victim of a s.33 offence is of great significance in assessing the objective gravity of the offence. However, the objective gravity of a s.33 offence is not determined by consideration of the injuries caused, with all the circumstances of the offence being relevant: AM v R at [69]-[72].

1. Of particular application to the circumstances of this case, are the following observations in AM v R at [73]:

"The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention for a s.33 offence: R v Zamagias at [14]. This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 161 at [17]. Likewise, where the offender does not voluntarily end the attack, but it is necessary for another person to pull him away to protect the victim: R v Zamagias at [13]; R v Mitchell at 101 [28]."

1. The attack by the Applicant upon Mr Cooke with a sledgehammer involved the use of force against a vulnerable victim, which aggravates the crime. The victim was lying helpless on the ground at the time when the Applicant struck the second blow with the sledgehammer: AM v R at [78]. A third blow aimed at the prone victim was stopped as a result of intervention by a third party, and not because the Applicant voluntarily ended the attack: AM v R at [73]. That this intervention was most fortunate for both the victim and the Applicant is clear, given the potential consequences of a direct blow to the head by use of a sledgehammer.

1. The Applicant had a prior offence of assault occasioning actual bodily harm (in August 2007) as well as other offences on his record. The present offence was committed whilst he was subject to conditional liberty in the form of a suspended sentence and a sentence of imprisonment by way of periodic detention. After this offence, the Applicant absconded to the Northern Territory.

1. The sentencing Judge gave appropriate weight to the Applicant's limited intellectual capacity. This factor operated both for and against the Applicant on sentence, given his capacity for aggressive conduct which bears upon issues of personal deterrence and protection of the community.

1. I am entirely unpersuaded that the sentence imposed upon the Applicant is one which calls for the intervention of this Court. The Applicant involved himself in a sustained violent episode, culminating in the use by him of a sledgehammer with grave consequences. The objective gravity of the offence, and the Applicant's subjective circumstances, were taken into account together with other relevant sentencing principles applicable to the case. A finding of special circumstances was made to allow the Applicant an appropriate period of supervision upon his return to the community.

1. In circumstances where the application is without merit, an extension of time to bring the application ought be refused.

1. A final observation should be made concerning the application. The evidence before this Court indicates that, despite his own requests, the Applicant has not received counselling and assistance whilst in custody with respect to anger management and related issues.

1. Given the nature of the offence and the Applicant's history, it is more than highly desirable that the Applicant be provided with an opportunity to undertake an appropriate custodial program of this type before the expiration of his non-parole period on 2 May 2015. Not only will involvement in such a program assist the Applicant, but the public interest will be served to promote protection of the community when the Applicant becomes eligible for release on parole.

1. I propose that the application to extend time to seek leave to appeal be refused. This Court should recommend that the Applicant be provided with a timely opportunity to undertake a custodial program with respect to anger management and violent offending.

1. BELLEW J: I agree with Johnson J.

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Decision last updated: 14 November 2013