Gersbach v The Queen - [2009] NSWCCA 132

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Gersbach v R [2009] NSWCCA 132

FILE NUMBER(S):
2007/3203

HEARING DATE(S):
9 December 2007

JUDGMENT DATE:
29 April 2009

PARTIES:
Matthew Gersbach (appellant)
The Crown

JUDGMENT OF:
McClellan CJatCL Howie J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/31/0370

LOWER COURT JUDICIAL OFFICER:
Coolahan DCJ

LOWER COURT DATE OF DECISION:
15 June 2007

COUNSEL:
A Francis (appellant)
N Noman (Crown)

SOLICITORS:
Legal Aid Commission of NSW (appellant)
Director of Public Prosecutions

CATCHWORDS:
CRIMINAL LAW - appeal against conviction - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - whether verdict unreasonable or cannot be supported by the evidence - whether a significant possibility that the incorrect person has been convicted - whether trial miscarried on account of crown prosecutor's address - whether trial judge erred by failing to give adequate directions in respect of acts or omissions of the appellant giving rise to a consciousness of guilt - appeal dismissed
CRIMINAL LAW - appeal against sentence - whether trial judge erred in consideration of subjective features of offender as going to special circumstances only - subjective features to be considered in assessing application of standard non parole period - whether insufficient variation from standard non parole period - appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Allen v R [2008] NSWCCA 11
Causevic v R [2008] NSWCCA 238
Dodds v R (2009) NSWCCA 78
Livermore v R [2006] NSWCCA 334 at [31]; 67 NSWLR 659
R v Chisari [2006] NSWCCA 19
R v Fidow [2004] NSWCCA 172
R v McGourty [2002] NSWCCA 335
R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
R v Way (2004) 60 NSWLR 168
Tidona v R [2005] NSWCCA 410

TEXTS CITED:

DECISION:
1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3203
McCLELLAN CJ at CL
HOWIE J
HISLOP J
WEDNESDAY 29 APRIL 2009

GERSBACH, Mathew v R

Judgment

McCLELLAN CJ at CL: The appellant was convicted of maliciously inflicting grievous bodily harm on Shane Rumble (“the victim”) with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900.
The maximum penalty for the offence is 25 years imprisonment. The offence attracts a standard non-parole period of 7 years – s 54A Crimes (Sentencing Procedure) Act. The appellant was sentenced to imprisonment for 9 years and 4 months with a non-parole period of 6 years and 6 months. The appellant appeals against his conviction and seeks leave to appeal against his sentence.
There are three grounds of appeal against the conviction. The first ground is that the verdict is unreasonable. The two further grounds are related to the Crown Prosecutor’s address and the failure of the trial judge to give adequate directions in relation to lies.
Factual matters
The victim, Shane Rumble was assaulted on or about 1 February 2006 when walking the streets of Edgeworth at night. He suffered significant head injuries which were inflicted with a cricket bat. His injuries were such that he had no memory of the incident and could not identify his attacker. The attack occurred at about 2 am.
Four persons Joel Lewicki, Sophie Tangye, Jaime Brown and Peter Simpson gave evidence of the incident. There were inconsistencies in their evidence which is the source of the submission that the jury’s verdict was unreasonable. However, they each nominated the appellant as the person who committed the assault on the victim.
The witnesses were familiar with the appellant in varying degrees. The evidence indicated that Lewicki and Simpson shared a close relationship with him; Lewicki described the appellant as being one of his best friends and Simpson (who was a cousin of the appellant) was living with him at the time. Both of these witnesses stated that it was the appellant who committed the offence against the victim. They could not be mistaken as to his identity although of course it may be, as the appellant contended, that they were not telling the truth.
Brown, Lewicki, Simpson and Tangye all stated that the appellant was at Brown’s premises in the hours preceding the assault and (with the exception of Lewicki, who was not present at this stage) was part of a group of people that walked to Windsor Street to “sort out” an unrelated dispute arising from an incident the previous evening. These witnesses gave evidence that the appellant was part of the group that met with the victim on Lloyd Street and continued to walk toward the area where the assault ultimately took place.
Several witnesses gave evidence that there was a conversation between the appellant and the victim when they were walking as part of the group. Although the exact words used are not clear, it is apparent that there was some antagonism between them. There was a reference to the victim having a knife.
All of the eyewitnesses nominated the appellant as the person in possession of the cricket bat in the moments before the victim was struck. Simpson and Tangye said that they saw the appellant hit the victim with the bat several times. Brown said that he did not see the incident but heard the strike against the victim as he ran from the scene. Lewicki heard the first strike and then saw the subsequent blows while the victim was prone on the ground. There was no evidence from any of the witnesses that the bat was in the possession of anyone other than the appellant in the moments before the assault took place. Both Simpson and Tangye said that the appellant threw the bat into a stormwater drain after they left the area where the incident occurred.
After the victim had been attacked the group (with the exception of Lewicki) left him and walked in a westerly direction along Main Road, Edgeworth. Brown, Simpson and Tangye all said that the appellant left the group and went in a different direction when a police vehicle drove past them. The evidence of Sergeant Ian Findlay supports these accounts. He was driving with Constable Alison MacMillan in an easterly direction in a marked police vehicle and observed an unidentified male in conversation with Brown, Simpson and Tangye on the opposite side of the road. Sergeant Findlay turned the police vehicle around and as the vehicle approached the group he observed the unidentified male to change direction and walk toward a grassed area behind a nearby shop. When Sergeant Findlay asked the group who that unidentified male person was, Tangye identified the person by first name as the appellant.
There was evidence that the appellant returned to Brown’s premises after the assault on the victim. Brown and Tangye gave evidence that the appellant stayed at the premises for a short time before leaving to meet Simpson. Simpson’s evidence was that he met with the appellant on the journey back to their home in Elermore Vale.
Ground 1: The verdict is unreasonable.
The approach of an appellate court
In Dodds v R (2009) NSWCCA 78 I provided a short discussion of the approach to be taken by an appellate court when it is submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: s 6(1) Criminal Appeal Act 1912 I said
“The appellant submitted that the verdict of the jury was unreasonable or cannot be supported by the evidence: Criminal Appeal Act 1912 s 6(1). The correct approach to this question by an appeal court has been considered by the High Court on a number of occasions: M v R (1994) 181 CLR 487; MFA v R (2002) 213 CLR 606 at 614 at 615. I summarised the relevant principles in R v Habib [2005] NSWCCA 223 and discussed them in Kaliyanda v R [2007] NSWCCA 300. The court’s task is to consider whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The joint judgment in MFA offered the following by way of guidance:
‘The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:
‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].
In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].
I will follow that approach in the resolution of the present matter.
There are several aspects of the evidence given by particular witnesses that are at odds with the accounts of other witnesses at the trial. Although these matters are peripheral to the essential allegation that it was the appellant who attacked the victim. They are emphasised by the appellant who submitted that as a consequence the evidence that it was the appellant who committed the assault could not be accepted. It is convenient to discuss the relevant evidence as it relates to the sequence of events which allegedly occurred. Those events in chronological order were:

The arrival of the appellant and others at Brown’s premises
The journey from Brown’s premises to Windsor St
Contact with the victim
Coming into possession of the cricket bat
The offence – striking of the victim
Disposal of the bat
Contact with Police after the incident
Return to Brown’s premises after the incident
The arrival of the appellant and others at Brown’s premises

Sophie Tangye and Jamie Brown both gave evidence that they were present at Brown’s premises, 5 Albert St, Edgeworth on the night of the offence. Their evidence was that four people arrived in a car driven by an unidentified person; three of the group were identified as being the appellant, Peter Simpson and Joel Lewicki. Joel Lewicki identified the fourth person who was driving the vehicle as Jamie Affleck. Tangye and Brown both gave evidence that the group arrived in the darkness of the late evening, and that the driver of the vehicle and Lewicki left after a short period. The appellant and Simpson remained at the premises. The evidence of Affleck, who stated that he drove the appellant, Lewicki and Simpson to the premises, before leaving with Lewicki a short time later, supported this version of events.
The evidence of Lewicki and Simpson on this aspect was not consistent with the accounts given by Affleck, Brown and Tangye. Lewicki’s evidence was that there were only three people in the vehicle that travelled to Brown’s address - Lewicki, the appellant and Affleck. According to Lewicki, their purpose was to collect Simpson from Brown’s premises, Simpson having arrived there earlier in the evening.
Simpson’s evidence was that he was present at Brown’s premises on the evening in question before the car containing Affleck, the appellant and Lewicki arrived. Simpson’s evidence confirmed that Affleck and Lewicki left a short time later in the vehicle, leaving the appellant, Brown, Tangye and himself at the house. To this extent, Simpson’s evidence is consistent with the account given by Lewicki. When cross-examined however, Simpson stated that he and the appellant arrived at Edgeworth by bus on the day in question. Simpson was the only witness to give evidence that the appellant arrived at the premises by bus.
In the end these inconsistencies are of little relevance. All of the witnesses are agreed that by whatever means the appellant came to Brown’s premises and was there during the relevant evening.
The journey from Brown’s premises to Windsor St
Later in the evening, the four persons remaining at Brown’s premises (the appellant, Brown, Simpson and Tangye) left the house and walked towards a house in nearby Windsor St, the occupants of which had apparently thrown a brick at the window of Brown’s premises the previous night.
Brown and Tangye gave evidence in which they said that the group of four walked together as far as the top of Lloyd St, from which point the appellant and Simpson continued on to Windsor St, to “sort out” a resident in that street who had thrown the brick. Tangye gave evidence that she and Brown waited at the top of Lloyd St for 10-15 minutes, before the appellant and Simpson returned to meet them where they had been waiting. The group of four then proceeded to walk along Lloyd St, towards Brown’s premises.
Brown gave a slightly different account. He said that he and Tangye had waited at the top of Lloyd St for twenty minutes before starting to walk back towards Brown’s premises, travelling as far as the junction of Lloyd St and Albert St. It was at this time, before the return of the appellant and Simpson, that Brown and Tangye first came into contact with the victim, who was walking along Lloyd St. Brown’s evidence was that the appellant and Simpson rejoined them a short time after he and Tangye had met the victim, who at that stage was having a conversation with Tangye.
Simpson’s evidence was not consistent with the accounts given by Brown and Tangye; he stated that Brown and Tangye waited “across the road” while he and the appellant went to the door of the person that they were looking for. After their conversation with a resident in Windsor St, Simpson stated that the group of four (the appellant, Brown, Simpson and Tangye) then returned to Brown’s premises for roughly two hours, before leaving again and subsequently meeting the victim. This is different to the evidence of Brown and Tangye, who stated that the group only left Brown’s premises on one occasion that evening, which was prior to them walking to Windsor St.
Contact with the victim
Tangye gave evidence that while the group of four were walking along Lloyd St to meet Lewicki at the “Henny Penny” takeaway store, they came into contact with the victim who was walking in the opposite direction. Tangye’s evidence was that the appellant had a short conversation with the victim before the victim pulled a knife from underneath his jumper.
Brown’s evidence is largely consistent with the account provided by Tangye, except that Brown stated that only he and Tangye were present on Lloyd St when they first came into contact with the victim. He said that the appellant and Simpson arrived shortly afterwards. Brown stated that when the victim produced the knife, the appellant put his arm around him and told the victim to put the “butter knife” away. When cross-examined however, Brown agreed that it could in fact have been Simpson who put his arm around the victim.
Simpson’s evidence was different. He said that the group returned to Brown’s address after leaving Windsor St and stayed there for approximately two hours, drinking alcohol. The group of four left on foot to buy more alcohol later in the night. He said that it was when the group was “just around the corner” after leaving Brown’s premises that they came into contact with the victim.
Coming into possession of the cricket bat
Brown and Tangye gave similar evidence to the effect that as the group was walking to meet Lewicki at the takeaway store, they reached a sporting field with a nearby canteen. Their evidence was that the appellant obtained the bat from near a pile of rubbish that was behind the canteen. Brown denied that he had the bat in his possession at any point during the night.
Simpson’s evidence was not consistent with that of Brown and Tangye. Simpson stated that when the group left Brown’s premises, for the second time, to buy more alcohol (an event that itself was not the evidence of the other witnesses), Brown was carrying a bat, citing the fact that it was a “rough neighbourhood”. He said that the group came into contact with the victim shortly after leaving Brown’s premises. Simpson said that he did not see how the bat was transferred from Brown to the appellant prior to the victim being struck. Joel Lewicki also said that he saw Brown with the bat in his possession when he met up with the group as they were walking.
The offence – striking of Rumble
There was broad consensus between the witnesses as to what happened at the critical point of the evening. The evidence of Brown, Simpson, Tangye and Lewicki (who had met up with the group by this stage) was that the group (now consisting of six people; the appellant, Brown, the victim, Lewicki, Simpson and Tangye) was standing about in an area behind a shopping centre when the appellant approached the victim from behind and struck him with the bat, before striking him two more times when he was on the ground.
Brown, Lewicki and Simpson said that they did not actually see the first strike, but heard the contact of the bat and saw the victim fall to the ground. Lewicki and Simpson observed the subsequent strikes while the victim was on the ground. Tangye’s evidence was that she saw the appellant strike the victim from behind.
Disposal of the bat
Simpson and Tangye both gave evidence about the disposal of the bat used to strike the victim. Brown did not give any evidence about this issue; his evidence was that he ran away from the group when he saw that the victim was about to be struck. He said that he was joined by the appellant, Simpson and Tangye a short time later.
Both Simpson and Tangye said that the appellant threw the bat into a nearby drain as the group (the appellant, Simpson and Tangye) walked in the direction of the Edgeworth Tavern. The bat was never recovered.
Contact with Police after the incident
Tangye gave evidence that there were two occasions when the group saw the police during the walk back to Brown’s premises. On the first occasion, the group was walking along Main Road and a police vehicle drove past them, without stopping. Tangye said that after the vehicle drove past, the appellant separated from the group and ran into a vegetated area. This was the last that she saw of the appellant before she returned to Brown’s premises. A police vehicle stopped a short time later and questioned the group (Brown, Simpson and Tangye) about whether they knew about “a male lying unconscious in the back streets behind the BWS.” The group denied any knowledge of this, telling the police that they had been at Tangye’s brother’s house that evening. The police asked if the group knew the identity of the person that was observed to run away. Tangye identified that person as “my friend, Mat.”
Simpson also gave evidence that the appellant ran away from the group when a police vehicle drove past them. He said that the group were questioned a short time after when a police vehicle stopped and an officer spoke to them. Simpson confirmed that the police asked who the person was that they saw run away, and that Tangye told them that it was “some fellow named Mat.”
Brown gave evidence that the appellant did not cross the road with the group, but ran “between the library and the hall” before the police vehicle stopped. He also said that when the police asked who the person was that they saw him run away, Tangye said that it was the appellant.
Return to Brown’s address after the incident
Brown, Simpson and Tangye returned to Brown’s address together after the incident. Simpson’s evidence was that he stayed at Brown’s premises for “about two hours” to wait for the appellant, but left before the appellant returned. Simpson’s evidence was that he came across the appellant after he left Brown’s premises and was walking home. He said that the appellant was “drenched”, having had to jump into a creek to avoid police. The pair then walked home together.

Brown and Tangye’s evidence was that Simpson had only stayed at Brown’s premises for approximately five minutes before being asked to leave by Brown. The appellant arrived at the address a short time after Simpson left. Tangye said that the appellant was “wet and cold”. Brown’s evidence was that the appellant had a “quick shower” and left the address shortly afterwards. There was no evidence from Brown or Tangye as to whether the appellant was still wet when he left the premises.
There was evidence of telephone records of calls made between the various telephones of the witnesses on the night of the incident. However, the witnesses were not able to recall with any clarity which individuals were in contact with one another, and whose telephone was used to make any particular call. Some of their evidence as to who made phone calls and to whom the caller spoke is not consistent with the telephone records. However, this may be because some of those involved were using another person’s mobile telephone.
Was the verdict unreasonable?
It is apparent that if Tangye was accepted the jury could be satisfied beyond reasonable doubt of the appellant’s guilt. Her evidence was significantly corroborated by that of Lewicki. Although as the appellant emphasised, and as his Honour discussed with the jury, there were discrepancies in their evidence, those discrepancies were not such as to lead inevitably to the conclusion that their account of the significant events should be rejected.
The only other real possibility to the appellant being the attacker was that it was Brown who inflicted the injuries on Shane Rumble. Simpson’s evidence was that it was Brown, and not the appellant, who was initially carrying the bat and that he took it from his residence. Lewicki also said he saw Brown with the bat. However, they both gave evidence that it was the appellant and not Brown who carried out the assault. Suspicion about Brown’s involvement is raised by his evidence that he did not see how the cricket bat was disposed of having, on his account, left the group as the incident occurred and rejoined it later. It is odd that the bat was not recovered although of course if it was thrown into the drain it could have been retrieved by a stranger.
Apart from the evidence of those who say it was the appellant who struck the victim it is undoubted that the appellant had left the group when the police arrived. His conduct was consistent with a concern that he may be identified as the attacker.
When a number of witnesses give an account of a detailed sequence of events which occur quickly and where considerable trauma is involved inconsistent recollections are likely. I wrote of these issues in “Who is telling the truth: Psychology, common sense and the law” (2006) 80 ALJ 655. Human experience teaches us that in these circumstances individual recollections for detail will be faulty and contradictions between witnesses of the same event likely. Furthermore, with time our recollections of particular events will fade, or may alter, occasioning inconsistency between our present recollection and an earlier account we may have given of the same event. There is little doubt that the group had experienced a long and eventful evening during which alcohol and possibly drugs were consumed. Differing recollections of incidental events would be inevitable.
This court is required to consider the whole of the evidence before the jury. I have done so. Although there were inconsistencies in the witnesses evidence they were identified at the trial and considered by the jury. This is an occasion on which the capacity of the jury to consider both the truthfulness and reliability of the witnesses was significant. Having considered the whole of the record including the fact that the jury was satisfied of the appellant’s guilt, notwithstanding the criticism made of the evidence of various witnesses, I am satisfied that it was open to the jury to be satisfied to the requisite standard of the appellant’s guilt. I am not persuaded that there is a significant possibility that the incorrect person has been convicted.
I reject ground 1 of the appeal.
Grounds 2 and 3 may be considered together. They were as follows:
Ground 2 – the trial miscarried on account of the Crown Prosecutor’s address.
Ground 3 – the trial judge erred by failing to give adequate directions in respect of the Crown Prosecutor’s address which repeatedly raised acts or omissions on the part of the appellant as giving rise to a consciousness of guilt.
Denial of knowledge of the assault
The appellant participated in an interview with the police but did not give evidence at his trial. The record of the interview was tendered. The Crown alleged that the appellant had lied during his interview. The prosecutor told the jury that these alleged lies evinced a consciousness of guilt in the appellant.
The Crown identified three lies told by the appellant in the ERISP. Although separately discussed they all related to whether the appellant was aware of the assault of Mr Rumble before he was spoken to by the police on the morning of 3 March.
The appellant told the police that the first he had heard of the assault was “when you blokes (the police) spoke to me about it this morning” (ie 3 March 2006). He said this despite the fact that he had answered the door to plain-clothes police officers that had come to his home on 28 February 2006. On that occasion the police had come to speak with Simpson about the assault. The appellant told police in the ERISP that he made no enquiry of Simpson after the police left that day as to the why they had come to the house. In relation to the statement that the appellant knew nothing of the assault until 3 March 2006, the Crown Prosecutor said to the jury:
“That’s garbage. That, I would submit to you, is a lie. It was a deliberate lie and it was a deliberate lie told by him, I would submit to you, to avoid the truth and he was avoiding the truth because he knew in his mind that if he told the truth he would be implicating himself in this assault.”
When the police asked the appellant whether the allegation had been brought to his attention that it was he who had assaulted the victim, the appellant replied, “No, as a matter of fact, this is the first I’ve heard of it.” In relation to this statement, the Crown Prosecutor said to the jury:
“That’s garbage. It’s got to be a lie. And it’s got to be a lie told by him with a consciousness of his own guilt.”
When asked by police whether he was aware that the victim had been admitted to hospital as a result of being assaulted, the appellant said, “No, like I said, I wasn’t aware of anything of this until yous (sic) picked me this morning.” In relation to this statement, the Crown Prosecutor said:
“That’s another lie and you are entitled, listening very carefully to the directions that his Honour will give you, no doubt, about this particular aspect – I would ask you to listen very carefully to what he says about it, but please bear this in mind, that the Crown is relying quite heavily upon those lies told by the accused because we do say that they evince a consciousness of guilt on his part.”
The trial judge dealt with the question of lies in his summing up. He was firm in rejecting the prosecutor’s submission with respect to the significance of the appellant’s account of when he first came to learn of the incident. His Honour said:
“During the course of that interview, members of the jury, the accused told Senior Constable Kitcher that 3 March was the first occasion on which he had come to hear of this incident. The learned crown prosecutor in his closing address to you yesterday invited you to find that was a lie and that in lying, the accused manifested a consciousness of his own guilt. I have to tell you as a matter of law, members of the jury, with due respect to the learned crown prosecutor that you are not entitled to use the evidence in that way. If you were satisfied that the accused was lying when he said that, you can take that into account in assessing his overall credibility but you can not use it as some sort of admission or as an indication that he was conscious of his own guilt in relation to the matter.”
The trial judge referred to the interview with the police in general terms. However, the appellant submitted that there were three separate lies (being the three occasions I have referred to above) identified by the Crown and only one of them was dealt with by the trial judge. The appellant contended that the trial judge’s direction did little to ameliorate the impact of the second and third occasions in the sequence. It was submitted that the judge’s directions did not “take the sting” out of the prohibited inferences that the Crown invited the jury to draw from the purported lies.
The three lies identified by the Crown Prosecutor in his address were cited in short succession and the Crown Prosecutor made similar submissions in respect to each of them. Although there were differences in the subject matter of each of the three impugned responses by the appellant, each one was consistent with the one proposition– that he was not present on the night of the assault and had no knowledge whatsoever of the events of that night. The first sentence of the trial judge’s direction was of general application and would have been understood by the jury as referring to the lies identified by the Crown Prosecutor. The direction was firm and left the jury in no doubt as to the approach which it should take to the question of lies. The jury could have regard to the appellant’s response when considering his credit but not as evidence of a consciousness of guilt.
The appellant’s failure to mention his brother in the ERISP
When interviewed by the police the appellant said that he was at home on the night of the incident. He did not mention that he had a younger brother named Mark. Simpson gave evidence that Mark had been present at the appellant’s house on the evening of 27 February and the morning of 28 February and was caring for the appellant’s children while both Simpson and the appellant were out for the evening. The police did not question the appellant at any stage in relation to Mark.
The Crown Prosecutor drew the jury’s attention to these matters. He said:
“Now, another matter that you may consider is this, members of the jury, that the accused didn’t mention his brother’s name during the course of his interview. Was that just a slip on his part because he wasn’t really aware of what that night was? We would submit to you it was more than that. We would submit to you that to say that Mark was there would lead the police, and later on other people, to accept that perhaps he did leave those children in the care of someone whilst he was out over at Edgeworth that night.”
The appellant complained that these remarks would have been understood by the jury as a submission that the appellant did not mention his brother out of a consciousness of his own guilt and that investigation of the brother’s whereabouts would have disclosed that the appellant was lying in the ERISP when he said that he was at home on the night of the assault. The appellant also submitted that the submission by the Crown invited the jury to draw an adverse inference from the “failure” of the brother to give evidence supporting the appellant’s alibi.
The trial judge did not give any warnings to the jury in respect of this part of the Crown Prosecutor’s address.
In my opinion the reference to the appellant’s brother Mark by the prosecutor did not have the significance suggested by the appellant. The remark is somewhat confusing and I do not believe that the jury would have understood that the prosecutor was suggesting that they should draw an inference adverse to the appellant because of a failure by the appellant to call his brother. Furthermore, I do not accept that the prosecutor was asserting that the appellant had lied out of a consciousness of guilt. No complaint was made by defence counsel at the time which suggests that no one believed the remark to have any particular significance, certainly not as now suggested by the appellant.
The appellant’s hair
Evidence was given at the trial that prior to, and on the date of the assault (on or about 1 February 2006), the appellant had a curly “afro style” haircut. When the appellant participated in an ERISP on 3 March 2006, his hair was shorter.
In his address to the jury, the Crown Prosecutor addressed the change in the appellant’s haircut between the date of the offence and the date of the ERISP. The Crown Prosecutor said:
“The length of his hair, well, I don’t know. That’s an aspect that you can consider. You saw him in the interview. You saw the length of his hair then. You know that it was cut after 1 February. It’s a matter for you whether you consider that that was done deliberately in order to alter his appearance.”
The appellant submitted that the prosecutor was asserting a consciousness of guilt in the appellant from the fact that the appellant had “cut his hair” when interviewed by police. The appellant complains that the trial judge did not give any warnings which corrected the erroneous implication in this aspect of the Crown address.
The appellant’s submission is not borne out by the transcript. In his summing up, the trial judge addressed the comments made by the Crown Prosecutor in relation to the haircut of the appellant. He said:
“He (the Crown Prosecutor) said to you that there was evidence that the accused had changed his hairstyle after this incident. Just on that score, members of the jury, the evidence about that is somewhat in conflict and I would suggest to you that you could not really make anything of that. Certainly, members of the jury, you could not, even if you found that he changed his hairstyle after this incident, use that as some sort of evidence that he was conscious of his own guilt.”
It is difficult to see the relevance of the issue. There was no significant question at the trial which related to the appellant’s identity. The fundamental issue was whether the witnesses who knew the appellant and said they saw him inflict the injuries on the victim were telling the truth. This direction was firm and appropriate and satisfactorily addressed the issue.
The use of the word “garbage”
The appellant separately complained about the reference by the Crown Prosecutor to a portion of the appellant’s statement as being “that’s garbage. That I would submit to you is a lie.” It was submitted that by speaking in this intemperate way the prosecutor contravened the principles described by this Court in Livermore v R [2006] NSWCCA 334 at [31]; 67 NSWLR 659 where the court said that there were a number of features of a Crown address which may justify censure. They were described as:
1.A submission to the jury based upon material which is not in evidence.
2.Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.
3. Comments which belittle or ridicule any part of an accused’s case.
4.Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.
5. Conveying to the jury the Crown Prosecutor’s personal opinions.
The issues relating to the conduct of a prosecutor were again considered in Causevic v R [2008] NSWCCA 238 where the court emphasised that whether or not the behaviour of a prosecutor has caused a trial to miscarry will depend upon the circumstances of the particular case. In Causevic the prosecutor described some aspects of the defence case as being “nonsense”. In that case I said at [45]:
“Although the prosecutor expressed himself in strong language I am not persuaded that in the circumstances of this case it was unacceptable. The authorities make plain that the prosecutor was entitled to firmly and vigorously agitate the Crown case. The defence position was not belittled by expressions such as a ‘cynical defence’ (Rugari). Witnesses were not described as idiots or the defence case as being ‘silly’ or ‘bizarre’ or akin to a plot from ‘Desperate Housewives’ (Livermore). In Gonzales this Court accepted, that in the circumstances of that case, it was not inappropriate for the prosecutor to describe the appellant as being ‘pathetic’ and ‘absolutely pathetic’.”
The use of the expression “garbage” by the prosecutor in the present case was crude and if anything diminished the authority of his address. It should not have been used. However, I am not persuaded that the choice of language adversely impacted upon the conduct of the trial so as to require the intervention of this Court. No application was made to the trial judge which suggested that defence counsel did not perceive a difficulty with this manner of address.
Grounds 2 and 3 of the appeal fail and in my opinion the appeal against conviction should be dismissed.
Sentence
The appellant seeks leave to appeal against his sentence. As I have previously related the appellant was sentenced to imprisonment for 9 years and 4 months with a non-parole period of 6 years and 6 months. The sentencing judge concluded that the offence was “mid level” and that the “only real argument about the non-parole period to be imposed is whether there should be a finding of special circumstances.” The grounds of appeal advanced in support of the application are as follows:
Ground 1:             His Honour erred in his approach to the application of the standard non-parole period:
(a)by finding that the offence was “mid range” and as such called for the application of the standard non-parole period in the absence of “special circumstances”;
(b)by insufficient variation from the standard non-parole period;
(c)          by having inadequate regard to the evidence of provocation;
(d)by arriving at the head sentence by simply applying a one third increment to the standard non parole period.
Ground 2:             The sentence is manifestly excessive in the circumstances of this case.
In his remarks on sentence the sentencing judge summarised the relevant facts. There is no suggestion by the appellant that his Honour’s account was in error. His Honour expressed concern that there were inconsistencies in some aspects of the witnesses accounts of the relevant events. I have previously discussed these matters. His Honour then concluded:
“In my view the factual basis for sentence should be that the offender, for reasons which will remain unclear, committed an unprovoked attack upon the victim with a cricket bat, which involved him striking the victim to the head while the victim was standing and then striking him to the head twice more whilst the victim was on the ground. Whilst there may have been mention in the evidence of the victim having a knife, there is no suggestion in any of the evidence that at any time, approximate to the commission of the offence, did the victim threaten the offender with the knife, and indeed, this was never suggested to the victim although I should say that the victim suffered significant amnesia as a result of the incident. It was never part of the case for the offender that his actions were in any way provoked by any activity on the part of the victim. As I say, he at all times maintained that he was simply not there. The offender’s actions were gratuitous and vicious.”
There is no doubt that the assault occasioned significant injury to the victim. The opinion of Dr Roslyn Avery was that he suffered left frontal brain injuries, a left maxillary sinus fracture, post-traumatic amnesia for 58 days consistent with a very severe head injury. Dr Avery’s opinion was that the head injuries were “very severe” and “will likely have ongoing impact in terms of planning and short term memory difficulties”, problems which will be compounded by the victim’s previously poor education.
With respect to the appellant’s subjective features his Honour said:
“Turning to the subjective matters the offender is 26 years of age having been born on 24 April 1981. He was 24 at the time of the offence. He has only a limited criminal history. In the Children’s Court in 1999 he was sentenced to the rising of the court for assault. Later that year he was placed on a recognisance for malicious damage and that is the extent of his criminal history. When the offender appeared before me for sentence on 12 June 2007 he gave evidence. He said that he was born in Orange but moved with his mother and four siblings to Newcastle after his parents separated when he was three years of age. He said that he was the middle of the five children. All of whom had different fathers. He said that following their move to Newcastle his mother formed a new relationship which lasted until he was 12 or 13, but he said that there was no father figure in his life after that. He went to school locally but left halfway through year 9 when he was about 14. He referred to having some trouble with police when he was about 14. He said that he formed a relationship with a girl and was 15 when their first child was born and his partner was 16. The lived together and he fathered three more children to her. They separated in 2003. It appears that following the separation and with the assistance of the Department of Community Services and as a result of proceedings in the Children’s Court, he obtained custody of three of the four children who were living with him at the time of the offence. He originally had custody of the four children but he said that in 2005 his daughter went from his care to the care of his maternal grandmother.
He said that in addition to assistance from the Department of Community Services, he also had family support and was involved in a men’s group. He said that his mother baby-sat the children every Friday when he would go out on the town. This was his one break from the children each week. The offender said that whilst he accepted the jury’s verdict he did not agree with it. He said that the first he knew of the offence was when the police came to arrest him about one month after the offence was committed. He said that he was taken into custody on that day and the three boys went to live with their maternal grandmother. He has not seen them since. The offender said that he has an interest in electronics and had started a TAFE course but had not finished it. He said that something always came up to stop him from finishing the course. But he has made inquiries since being in custody, and unfortunately will not be able to complete the course because it involves practical work which is not available within the prison system. I accept the offender’s evidence. He gave it in a straightforward way. In any event it related mainly to his background, and in my view, does not impact significantly on sentencing considerations.”

At the sentence hearing counsel for the appellant acknowledged “that the nature of the offending behaviour must fall within the middle range of objective seriousness because in relation to the conduct found by the jury it must have involved the striking of a man from the rear on two or three occasions, in all likelihood on one or two of those occasions whilst he was not then in a position to defend himself and in all likelihood may very well have been unconscious at that time.” The Crown Prosecutor also submitted that the offence fell within the mid range for an offence of its type.
Although of course required to determine the matter for himself the sentencing judge agreed with the assessment of counsel. He ultimately decided that the standard non-parole period was appropriate, subject to a variation in the statutory ratio to reflect a finding of special circumstances.
It was submitted by the appellant that the sentencing judge had erred by confining his consideration in this fashion. It was submitted that his Honour had effectively excluded from consideration relevant subjective matters which would have affected the overall sentence and required a lesser sentence than that which was imposed.
If his Honour had approached the sentence in the manner suggested by the appellant error could have occurred. The problem was discussed by this Court in Tidona v R [2005] NSWCCA 410 where the sentencing judge failed to consider all of the matters relevant to the appropriate non-parole period. In R v McGourty [2002] NSWCCA 335 this Court confirmed that sentencing cannot be reduced to a simple arithmetic process. In every case where a sentencing judge determines that the crime falls within the mid range of objective seriousness it is still necessary to consider whether there are reasons for not imposing the standard non-parole period. R v Way (2004) 60 NSWLR 168, is the authoritative judgment with respect to the correct approach to the consideration of standard non-parole periods.
In the present case, as I have indicated, there was no issue raised by counsel which would suggest that the objective circumstances of the offence did not justify a finding of a mid range offence. I am satisfied that the finding was appropriate. His Honour found that the appellant committed an unprovoked attack on the victim with a cricket bat which involved striking him to the head, two blows being inflicted when he was on the ground. He found that his actions were gratuitous and vicious.
With respect to the standard non-parole period and sentence ultimately imposed I do not accept that his Honour has erred. His remarks made plain that he brought to mind the relevant subjective matters but concluded that they were not such as to require a non-parole period less than the statutory standard. Such a finding was open and no error has been demonstrated.
His Honour made a finding of special circumstances which justified a variation of the non-parole period. By grounds of appeal 1(b) and (d) the appellant effectively complains that the sentencing judge did not further reduce the non-parole period by reason of subjective factors.
I am not persuaded that his Honour erred. The non-parole period imposed is just under 70% of the total term which could only be justified by a finding of special circumstances. It is important when considering the appropriate relationship between the non-parole and the overall term that there not be double counting: R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [18]-[22]. Having considered the appellant’s appropriate subjective circumstances when determining the non-parole period to have again considered them with respect to “special circumstances” would have resulted in double counting. I am not persuaded that a period of two years and 10 months on parole is an insufficient period for the purpose of the appellant’s rehabilitation.
With respect to ground 1(c) the appellant’s submission was that the sentencing judge failed to have adequate regard to the evidence of provocation. This submission is at odds with his Honour’s finding which rejected any suggestion of provocation. Nothing was advanced by the appellant which would suggest that this finding was not open and that his Honour erred in relation to it. Although there was evidence of a knife being within the victim’s possession and there was evidence that the knife was produced, there was no suggestion that he threatened the appellant with it in any meaningful way, or that his possession of it justified the brutal attack which was made upon him. There was no evidence that the victim assaulted the appellant or made any threat to him justifying a finding of provocation.
Ground 2
The appellant submitted that the sentence was excessive but beyond the matters to which I have referred in relation to ground 1 made no additional submission in support of this ground.
The Judicial Commission statistics for offences contrary to s 33 of the Crimes Act do not support the argument that the sentence is manifestly excessive. Whilst the usefulness of the statistics requires careful consideration in each case, in relation to s 33, they do provide an indication of the range of sentences that has developed, bearing in mind that the maximum sentence is the true indicator of the top of that range: Allen v R [2008] NSWCCA 11 at [24]. Given the brutality of the unprovoked assault in the present case the statistics would suggest that a greater term of imprisonment than that which was imposed would not have been inappropriate.
It was an aggravating feature of this offence that the appellant used a cricket bat to inflict the injuries, the use of a weapon not being an element of an offence contrary to s 33: R v Chisari [2006] NSWCCA 19 per Simpson J at [31]. His Honour did not directly refer to the use of the bat as an aggravating feature in his remarks on sentence which may have favoured the appellant.
Furthermore, his Honour did not refer to the importance of general or personal deterrence in his remarks. This Court has often said in relation to offences of this type that general deterrence is of great importance and needs to be recognised by sentences that reflect that significance: R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94.
In the result I am not persuaded that the sentence which his Honour imposed was excessive.
I propose the following orders:
1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss the appeal.
HOWIE J: I agree with McClellan CJ at CL.
HISLOP J: I agree with McClellan CJ at CL.
**********

LAST UPDATED:
29 April 2009