Fenech v R

[2018] NSWCCA 160

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Fenech v R [2018] NSWCCA 160
Hearing dates:	16 July 2018
Decision date:	01 August 2018
Before:	Beazley P at [1]; R A Hulme J at [2]; Button J at [48]
Decision:	1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:	CRIME – appeal – sentence – recklessly causing grievous bodily harm in company – sentenced to 3 years imprisonment with 2 year non-parole period – parity principle – whether applicant suffers justifiable sense of grievance – appropriate to use phrase “marked and unjustified disparity” in the application of the principle – applicant and four co-offenders received same sentence – sentence imposed relatively modest – applicant’s liability for offence largely same as for co-offenders – no justifiable sense of grievance.
Legislation Cited:	Crimes Act 1900 (NSW) ss 33(1)(b), 35(1)
Cases Cited:	Cameron v R [2017] NSWCCA 229 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Miles v R [2017] NSWCCA 266 Pecora v The Queen [1980] VR 499 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Potter [1977] Crim LR 112 R v Stroud (1977) 65 Cr App R 150 R v Tisalandis [1982] 2 NSWLR 430
Category:	Principal judgment
Parties:	Anthony Gerard Fenech (Applicant) Regina (Respondent)
Representation:	Counsel: Mr S Pararajasingham (Applicant) Mr N J Adams (Crown)   Solicitors: Conaghan Lawyers Solicitor for Public Prosecutions
File Number(s):	2013/22532
Decision under appeal	Court or tribunal: District Court Date of Decision: 30 June 2017 Before: Zahra SC DCJ File Number(s): 2013/22532

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour’s reasons and proposed orders.

2. R A HULME J: Mr Anthony Fenech (“the applicant”) seeks leave to appeal in respect of a sentence imposed by his Honour Judge Zahra SC in the District Court at Sydney on 30 June 2017.

3. His Honour imposed a sentence of imprisonment for 3 years with a non-parole period of 2 years dating from 22 February 2017 for an offence of recklessly causing grievous bodily harm in company. The offence is contrary to s 35(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 14 years and there is a standard non-parole period of 5 years.

4. The applicant had been tried with others upon an indictment alleging, first an offence contrary to s 33(1)(b) of the Crimes Act of causing grievous bodily harm with intent and alternatively the offence of recklessly causing grievous bodily harm in company. The trial was before Zahra SC DCJ without a jury. On 23 February 2017 his Honour returned verdicts of guilty of the primary offence in respect of two of the accused but not guilty of that offence but guilty of the alternative in respect of the other six accused including the applicant.

5. His Honour sentenced each of the offenders on 30 June 2017. The applicant seeks leave to appeal to this court on a sole ground:

“The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentences imposed upon his co-offenders.”

The offence

6. The facts pertaining to the offence are set out in considerable detail in the judgment of the primary judge in his reasons for verdict and in his remarks on sentence. The following is drawn from the useful summary provided in the written submissions by counsel for the applicant.

7. The victim of the offence was Michael Gregg who at the relevant time was the Sergeant-at-Arms of the Blacktown chapter of the Rebels Motorcycle Club. The applicant and his seven co-offenders were all connected to that club. The names of the co-offenders are set out in a table which is annexed to this judgment. Parity Table (23.8 KB, docx) 

8. On 23 January 2013 the offenders attended the Prospect Smash Repair (PSR) premises around 9.00pm at a time prior to the arrival of the victim. The judge found in his reasons on judgment and verdict (p90) that the offenders were involved in a joint criminal enterprise to assault the victim prior to their arrival.

9. Immediately after the arrival of the victim at the PSR premises the attack upon him occurred. He was initially attacked outside the premises with that incident being witnessed by persons referred to as Witness A and Witness B who were driving past. They observed what was described as a “vicious” assault with somewhere between six and eight males punching and kicking the victim while he was lying on his back. The witnesses turned their car around and drove back past the assault. One of them observed that the males were still kicking the victim and had started to drag him into the premises. A call was made to triple 0 at 9.03pm in which Witness A said, “there is a whole group of guys in cars and it looks like they are bashing someone”.

10. At least one person in the group was armed with a weapon (either a pole, bar or baton) in the initial assault. By inference this was the offender Aaron Ferguson. At least one other weapon was used in the attack however it was unclear at what point it was used. This weapon was either the handle of a pick axe or a bat. His Honour found that Aaron Ferguson and Joshua Achampong were physically involved in the assault on the footpath and that they intended to cause grievous bodily harm to the victim.

11. The victim lost consciousness during the initial assault outside the factory complex. He was then dragged inside and once there the external gates were locked and all of the offenders remained inside.

12. The victim was restrained with cable ties at some time either during or after the assault upon him on the footpath and before the arrival of the police. The assault was continuing when the police arrived and would not have stopped at that time but for the arrival of the police. After the police arrived, one of the offenders, David Coe, removed the cable ties from the victim’s hands whilst the victim was leaning up against the back of a truck in the workshop area.

13. The police who arrived at the scene at about 9.08pm heard screaming or yelling coming from the factory premises. They saw a pool of blood outside the factory complex on the footpath and a number of cable ties, including two which had been placed together to form simple handcuffs.

14. Police then saw a person in a wheelchair (the applicant) come outside from the office of the PSR premises. He was not wearing shoes or a t-shirt at the time. Police made multiple attempts to convince him to open the locked gates. There was tension between the applicant and the police which escalated with the arrival of additional police and during the attempts made by police to gain entry to the area beyond the gates. Police had guns drawn and pointed at the applicant at this time.

15. The offender Mario Gauci walked out the office door and towards the applicant. At this stage the victim, Mr Gregg, came to the door and walked outside. Police observed that his face was severely swollen, bruised and was covered in blood. He was staggering from the building and after he left the office area he leaned over and was dry retching. When he was walking towards the applicant police heard the applicant say, “you’re a dog”.

16. Police climbed the gate and entered the complex. This was at around 9.33pm. They saw a cable tie around the bottom of the victim’s right leg above his ankle. They also saw a large gash to his head, a small puncture wound to a finger, graze marks below his left shoulder blade, swelling to his left elbow and redness and marks on his torso. One officer observed a boot print on the side of his head.

17. There were 10 males in the PSR factory at the time the police arrived. Each was searched and had their clothing seized. No clothing was taken from the applicant because he was confined to a wheelchair. Police noticed a red substance on his foot but later forensic analysis was incomplete.

18. Blood matching the victim was found on the clothing of the offenders Francis Anderson, David Coe, Mario Gauci, Jared Khan, Ryan Vella and Joshua Achampong. None was found on Aaron Ferguson. The sentencing judge found that all the offenders who had blood with the DNA profile of the victim on their clothing or footwear had physically assaulted the victim and were either involved in the initial assault or the continuing assault as part of the joint criminal enterprise.

19. Inside the PSR premises there were a number of areas that had red staining. Crime scene examiners located, amongst other things: a broken cricket bat with the handle separated from the blade (with the DNA of the victim on it); a pick axe handle (with blood staining); a pair of shoes found in a cavity within the spray booth and a wall (with blood on them); and a number of black cable ties inside a laundry style sink located behind the office area.

20. Police also examined the white station wagon parked beyond the gates with the rear tailgate lifted in the open position. This vehicle was registered to the applicant. Inside it were found the head of a pick and an empty packet of cable ties. The head of the pick was found to fit the blood-stained pick axe handle found within the PSR premises. Also found in the front centre console of the vehicle was a gun holster and a bum bag which contained a driver’s licence of Mario Gauci.

21. The sentencing judge found that the applicant took the cable ties and pick axe handle to the PSR premises. His Honour also found that the applicant had intentionally used, or made available for use, these items in the assault upon the victim and in his restraint/detention and that the provision of these items established “pre-planning” and “pre-concert”.

22. On 6 February 2013 when police returned to the PSR premises they located a pistol behind boxes in the rear corner of the workshop with one bullet in it. The DNA on the bullet matched the victim and three other people.

23. A listening device was placed in the victim’s hospital room. From conversations recorded by it, it emerged that the probable motive for the assault was that the victim had engaged in a relationship with the partner of one of the offenders. However the sentencing judge was not able to form a concluded view about this.

24. The victim received considerable trauma to the head and face and abrasions to his back. There was extensive soft tissue injury in the nature of swelling and bruising to his entire face. There was a fracture of the floor of the eye socket resulting in the contents of the socket, including fat and some muscle, moving down into the sinus. Surgery involving “open reduction internal fixation of the right orbital floor fracture with a titanium mesh plate” was required. The evidence was that the victim should make a full recovery but would have a permanent scar under the right eye. There was evidence that there may be some long-term complications.

25. In relation to the applicant’s involvement in the assault upon the victim the judge accepted that there was no evidence that he was physically involved in the assault. However, the finding of cable ties on the footpath where the initial attack occurred and the presence of an empty cable tie pack in the applicant’s car supported an inference that the applicant was present in the area of the PSR premises prior to the victim’s arrival.

26. The judge found that the applicant entered into a joint criminal enterprise to assault the victim at the PSR premises prior to attending those premises. The fact that the cable ties and the pick axe handle were taken to and used at the premises was evidence of planning and preconcert for the attack and the assault upon the victim by the applicant. The applicant engaged in a joint criminal enterprise to assault the victim by assisting and encouraging the others.

27. The judge could not conclude that the applicant was outside the PSR premises when the initial attack occurred and therefore could not be satisfied that he intended or contemplated the extent of the attack and assault that occurred at that time. Further, the judge could not exclude the possibility that some lesser harm than grievous bodily harm was intended or contemplated by the applicant in carrying out the joint criminal enterprise to assault the victim. However the judge was satisfied that the applicant must have considered that the persons with whom he was in a joint criminal enterprise might have acted intentionally or recklessly to cause actual bodily harm.

Ground - the applicant has a justifiable sense of grievance when comparing his sentence with those imposed upon his co-offenders

28. I propose to say something briefly about the parity principle before turning to the applicant's contentions in the present case.

The parity principle

29. A succinct statement of the parity principle may be drawn from the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:

“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’ [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ].

30. There has been some discussion in this Court in recent times about whether the epithets, “gross, marked or glaring” should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]-[90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, “marked disparity” or “marked and unjustified disparity” have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301.

31. In Lowe v The Queen, Dawson J also used the expression, “manifestly excessive” in the following context (at 623-624):

“The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are ‘most exceptional’; see R v Stroud (1977) 65 Cr App R 150 at 153-154; R v Potter [1977] Crim LR 112 at 113. The decisions in this county do not appear to be quite as restrictive as this but on any view the interference with a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430.”

32. It is well known that the description “manifestly excessive” signifies something that is “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

33. In Postiglione v The Queen (at 302), Dawson and Gaudron JJ also spoke in terms of there being "due proportion" between sentences when regard is had to the "different circumstances of the co-offenders in question and their different degrees of criminality".

The applicant's contentions in the present case

34. In the present case it was submitted that there is “marked and manifest” disparity in sentencing as between the applicant and his co-offenders such as give rise to a justifiable sense of grievance.

35. Both the written submissions on behalf of the applicant and on behalf of the Crown included tables which compared the relevant features of the cases concerning the applicant and his co-offenders. The table referred to earlier that is annexed to this judgment amalgamates the information in those tables together with some further information derived from the judgments of the primary judge on verdict and sentence.

36. It is apparent from the information in the table that there were six offenders who were sentenced for the offence against s 35(1) and four of them (the applicant, Anderson, Khan and Vella) received sentences of 3 years with non-parole periods of 2 years whilst two (Coe and Gauci) received sentences of 3 years 4 months with non-parole periods of 2 years 3 months.

37. The first observation to make about the various sentencing outcomes is that for an offence which carries a maximum penalty of 14 years and also has a standard non-parole period of 5 years the sentences imposed by Zahra SC DCJ were relatively modest. It must be borne in mind that none of the offenders were entitled to any discount as they had all pleaded not guilty.

38. The written submissions by counsel on behalf of the applicant and the oral submissions made by different counsel at the hearing of the application sought to highlight various features of the applicant’s case that should have, it was contended, brought about a lesser sentence being imposed in his case.

39. It was contended, for example, that the applicant’s role in the offence rendered him less culpable than any of the other offenders. That is a matter about which minds might differ. The applicant played a key role in the event notwithstanding he was not shown to have physically participated in the assault upon the victim. It was he who brought the cable ties and the pick axe handle to the scene. The victim was beaten with the pick axe handle and a significant part of the assault upon him occurred whilst he was restrained with the use of the cable ties.

40. Various features of the applicant’s subjective case were also highlighted for comparison upon the contention that he should have received a more favourable response. For example, the degree to which he would experience hardship in custody was referred to. That was certainly one factor that was a significant feature of his subjective case but it is not to say that it necessarily warranted a lesser sentence than the one that was imposed. Two of the other offenders, in particular, were anticipated to experience hardship in custody as well (Coe with his Perthes disease and Gauci with his chronic pain condition).

41. Moreover, there were features that suggested that other offenders might be considered more favourably than the applicant. For example, some of the offenders were found to have a lesser risk of reoffending (all but Gauci). Some offenders had more favourable findings as to rehabilitation prospects (Anderson and Khan).

42. Counsel who appeared for the applicant at the hearing sought to pursue a further argument not foreshadowed in the written submissions. It was to the effect that the liability of each of the offenders found guilty of the offence against s 35(1) was on an extended joint criminal enterprise basis. That is, these offenders entered into a joint criminal enterprise to assault the victim and that during the course of that assault one or more of the participants committed the offence against s 35(1) in furtherance of the joint criminal enterprise. It was contended that the applicant’s culpability turned on an analysis of his role in the joint criminal enterprise as well as the circumstances in which he foresaw the possibility of the “additional offence”.

34. This issue was clearly explained in the remarks on sentence where his Honour summarised his findings on verdict on the issues of the existence of a joint criminal enterprise and the state of mind of each of the offenders. In short, his Honour was satisfied that those who assaulted the victim outside the premises intended to inflict grievous bodily harm upon him. His Honour was only satisfied that participation in that assault was proved beyond reasonable doubt in respect of the offenders Achampong and Ferguson. A finding that applied to each of the other offenders was that they attended the premises pursuant to an understanding or agreement to carry out an assault upon the victim. His Honour then described his finding as to their culpability as follows:

“I went on to make findings that those offenders who were not part of the assault on the footpath either himself committed the crime of recklessly cause grievous bodily harm while in company or a person, who was, together with him a party to a joint criminal enterprise, committed the crime of recklessly cause grievous bodily harm while in company in furtherance of that joint criminal enterprise. Further I was satisfied that even if an accused did not physically cause the injury, in all of the circumstances of their attendance with a number of persons with a common intention to assault the complainant, he must have considered that the person with whom he was in a joint criminal enterprise might act intentionally or recklessly to cause actual bodily harm (99).”

44. As it can be seen, the applicant’s liability for the offence was largely the same as it was for the others except that whilst he may not have participated in the physical assault upon the victim he played a significant role nonetheless in the way I have described (at [25-27]).

Conclusion

45. This was a most difficult sentencing exercise as no doubt the judge alone trial was for the primary judge, given the fact that there were eight offenders involved. It was noted in the written submissions on behalf of the applicant that the judge had not mentioned the principle of parity as such in his remarks on sentence. However, it has not been suggested, nor could it be, that the judge was not acutely mindful of the principles. The judgment, with respect, is exemplary for its detailed discussion of the objective and subjective cases concerning each of the eight offenders. His Honour’s discernment of their relative culpability for the offending and the degree to which mitigation was available in the light of their respective subjective circumstances is one that I cannot fault.

46. There is no cause for the applicant to have any justifiable sense of grievance when the sentence he received is compared to each of his co-offenders.

Orders

47. I propose the following orders:

1.   Leave to appeal against sentence granted.

2.   Appeal dismissed.

48. BUTTON J: I agree with R A Hulme J.

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Amendments

06 August 2018 - [32] - typographical error

Decision last updated: 06 August 2018