Heron v R

[2006] NSWCCA 215

CITATION:	Heron v Regina [2006] NSWCCA 215
HEARING DATE(S):	14/07/2006
JUDGMENT DATE:	26 July 2006
JUDGMENT OF:	Mason P at 1; Kirby J at 2; Hoeben J at 3
DECISION:	Leave to appeal granted; Sentence passed by Ducker ADCJ on 4 March 2005 is quashed; Applicant re-sentenced.
CATCHWORDS:	Sentence Appeal - maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s33 of Crimes Act 1900 - finding of special circumstances and ratio between head sentence and non-parole period - whether offence was in mid-range of seriousness for offences of that kind for purposes of standard non-parole period - aggravating features section 21A(2)(d) and (g) Crimes (Sentencing Procedure) Act.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Channon v The Queen (1978) 33 FLR 433 R v Engert (1995) 84 A Crim R 67 R v Moffitt (1990) 20 NSWLR 114 R v P [2004] NSWCCA 218 R v Simpson (2001) 53 NSWLR 704 R v Way (2004) 60 NSWLR 168 Veen v R (No 2) (1988) 164 CLR 465
PARTIES:	Cecil Arnold Heron - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2006/620
COUNSEL:	C Nash and D Kang - Applicant J A Girdham - Crown
SOLICITORS:	Teakle Ormsby Conn - Applicant S Kavanagh - Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/51/0052
LOWER COURT JUDICIAL OFFICER:	Ducker ADCJ
LOWER COURT DATE OF DECISION:	04/032005

2006/620

MASON P
KIRBY J
HOEBEN J

Wednesday, 26 July, 2006

Cecil Arnold HERON v REGINA

JUDGMENT

1 MASON P: I agree with Hoeben J.

2 KIRBY J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
The applicant was charged on indictment that on 19 June 2003 at McLean he did maliciously inflict grievous bodily harm upon Peter Freebody with intent to do grievous bodily harm to him. This was an offence contrary to s33 of the Crimes Act 1900. The offence carried a maximum sentence of 25 years imprisonment with a standard non-parole period of 7 years.

4 The applicant pleaded not guilty and a trial took place before Ducker ADCJ and a jury between 29 November and 9 December 2004. On that latter date the jury returned a verdict of guilty. The applicant has been in custody since 9 December 2004.

5 On 4 March 2005 the applicant was sentenced by his Honour. The sentence imposed was a non-parole period of 5 years and 6 months commencing 9 December 2004 and expiring 8 June 2010 with a balance of sentence of 2 years expiring 8 June 2012. The applicant seeks leave to appeal against the severity of that sentence.

Factual background

6 Because the applicant was convicted after a jury trial, there was no agreed statement of facts and precisely what facts were accepted by the jury cannot be determined. The main area of dispute was exactly how the victim came to be struck on the side of the face by a glass. There was also an issue as to who started the affray. What follows is, in general terms, drawn from the evidence given at trial and from the findings of fact in the remarks on sentence.

7 The incident occurred at the Argyle Hotel in McLean. A number of persons had gathered at the hotel to celebrate the birthday of a popular local identity. It was an occasion where quite large amounts of liquor were consumed by both the men and women who were then present.

8 The persons celebrating the occasion comprised a number of patrons who were of Aboriginal descent and persons who were not. It should be noted that there was no suggestion of racism in relation to the events of that night. As his Honour put it, things were going along in a fairly loud but cordial fashion until the arrival of the victim.

9 The applicant had played rugby league in the Sydney Premiership for St George and was still playing rugby league in the McLean area. He was not a big man but was strongly built. A dispute arose between the applicant and the victim concerning the on-field behaviour of the applicant towards the son of the victim in a recently played game of rugby league.

10 His Honour was satisfied that the victim initiated the argument with the applicant and criticised him for his behaviour on the football field. The argument escalated and culminated in the victim either pushing the applicant hard on the shoulder or taking a wild swing in the nature of a “hay maker” punch in the direction of the applicant. Thereafter the two men wrestled and attempted to strike blows to each other.

11 His Honour concluded that the incident would not have occurred had the victim not provoked the confrontation.

12 In the course of the struggle, the applicant tackled the victim which caused both men to crash into the front door smashing some glass in the process which cut the victim’s scalp. His Honour was satisfied that although he was the smaller man, the applicant was the better fighter and was well capable of over powering the victim. The victim, although a very big man, was 20 years older than the applicant.

13 At some point in the subsequent struggle between the two men the applicant struck the victim with a glass which caused the victim to fall to the floor with what his Honour described as a “gaping wound to his facial area and under his throat on the left side”. This ultimately required a large number of stitches. Despite the potential for serious injury, the long-term effects on the victim were comparatively few. His Honour estimated that the incident occurred within a short time frame, perhaps 15-20 seconds (ROS 13.9).

Subjective circumstances

14 The applicant’s date of birth is 7 August 1970. He was 32 when these events occurred and is now almost 36.

15 The applicant was born on the Aboriginal Mission Reserve at McLean and was the youngest of six children. The applicant’s father worked as a cane cutter and died when the applicant was one year old. This event brought economic hardship to the family and left the applicant’s mother to care alone for her large family.

16 The applicant has spent most of his life in McLean except when he was playing rugby league in Sydney and Orange. He completed year 11 and captained the McLean Rugby League side until recruited to the St George Rugby League Club in Sydney. The applicant played with the St George Club for three years.

17 While living and playing football in Sydney, the applicant also attended the TAFE Aboriginal Education Unit at Ultimo where he was a regional co-ordinator. He completed a two year TAFE certificate in Aboriginal Studies and completed many TAFE short courses in Aboriginal health, welfare and culture.

18 On his return to McLean, the applicant worked for the Land Council as an Aboriginal youth worker. He also continued to play rugby league football. For a three year period he lived and worked in Orange and also played rugby league football there. He returned to McLean in 2000 and resumed his work as a youth worker in the Aboriginal community.

19 The efforts of the applicant as a youth worker were particularly directed at the high rates of juvenile delinquency in the area and the alienation of many young people from both their indigenous culture and from the wider community. He developed a number of successful initiatives to assist young Aboriginal males who had come to the notice of the justice system so as to prevent them from offending again. He developed a program called “Youth at Risk” which is now widely used in rural areas and has the support of Centrelink, the Department of Juvenile Justice, the NSW Police Service and the Attorney-General’s Department.

20 The applicant’s work with Aboriginal youth in this field has achieved a reduction in crime and juvenile delinquency in the McLean area. As the eloquent testimonials provided for the applicant demonstrated, at the time of these events he was a role model for Aboriginal youth. His ability as a rugby league player enabled him to better communicate with young people. He was widely respected, not only by Aboriginal people but also in the wider community.

21 The applicant had experienced some personal difficulties with the criminal justice system before this offence. In September 1995 he was convicted of assault occasioning actual bodily harm. The background to this matter was that an altercation had arisen when he was playing pool and he had punched the other player. The cause of the altercation was provocative remarks and gestures by the other player. In January 2000 he was convicted of common assault. The circumstances were that he slapped a taxi driver on the side of the head which resulted in the taxi driver taking him to the police station where a complaint was made. He received a bond in respect of the first incident and a fine for the second incident. Of the two incidents the one with the taxi driver appears from the statement of facts to have been quite minor in nature. There were also some driving offences on the applicant’s record.

Remarks on sentence

22 His Honour noted that the crime of which the applicant had been convicted was one of the most serious in the criminal calendar. His Honour commented on the anomaly between the heavy penalty for that offence (25 years imprisonment) and the penalty for an offence contrary to s35 of the Crimes Act (7 years imprisonment) where except for intent, the ingredients were identical.

23 His Honour reviewed the facts and made the findings previously referred to. On a number of occasions his Honour referred to what might have happened if the glass which struck the victim had come in contact with a vital artery. His Honour expressed the opinion that a glass could be as dangerous a weapon as a revolver or a knife.

24 Having made that observation his Honour concluded:

“I have come therefore to the view that the objective seriousness of the offence was such as to take it beyond the reach of the middle range of offences of this type, I think that that is clear. It is not, however, my intention to suggest that it was very substantially beyond and bearing in mind the provisions which applied in this matter I propose to identify, as an appropriate non-parole period, one of 8 years.” (ROS 11.1)

25 His Honour then had regard to s21A of the Crimes (Sentencing Procedure) Act 1999. His Honour concluded that the applicant’s criminal record was serious enough to be regarded as an aggravating feature. His Honour had particular regard to the offence in September 1995 of punching a fellow pool player. His Honour thought that took a lot of the gloss off the very favourable material relating to the applicant’s background. His Honour also concluded that the injury, emotional harm and loss or damage caused by the offence was substantial. When considering the application of s21A(2)(g), his Honour had regard to the possibility that a fatality could have occurred had rapid first aid treatment not been provided.

26 By way of mitigating features his Honour had regard to the fact that the offence was not part of a planned or organised criminal activity and that the entire incident took place within a very short time. His Honour also noted that the offence was provoked by the actions of the victim although his Honour considered the response to the provocation to be “utterly unforgivable”.

27 His Honour regarded the applicant as a man of essentially good character who for the vast majority of his life had done nothing but good. He regarded the assault episodes, to which I have referred, as being serious lapses in that overall picture. His Honour also had regard to the applicant’s very difficult background with the loss of his father at an early age and the enormous effort which the applicant had put into improving himself and contributing in many different ways to the communities in which he had lived.

28 His Honour concluded that the applicant had good prospects of rehabilitation and was unlikely to re-offend. In that regard his Honour once again stressed that there had been no malice associated with the offence in the sense of premeditation, but that the offence had occurred on the spur of the moment after provocation. In relation to remorse, his Honour had this to say:

“It is suggested that he has shown remorse, well I do not really believe that I can allow much for that. He denied his guilt, as was his right, he is not punished for that but it is difficult to accept that there is true remorse when a person refuses to accept their responsibility for what they did.” (ROS 15.1)

29 His Honour concluded his sentencing remarks as follows:

“Weighing up these matters, as best I can, and all things considered I am of the view that an appropriate non-parole period is 5 years and 6 months. It will commence on 9 December 2004.
In my opinion there are special circumstances and that being this is his first period of incarceration, that he does need anger management counselling, and I am of the view that an overall sentence of 7 ½ years is appropriate.”

Grounds of Appeal
Ground 1: The learned sentencing judge erred in failing to give effect to his finding of special circumstances

30 It was submitted on behalf of the applicant that having found special circumstances, his Honour should have adjusted the ratio between the head sentence and the non-parole period so as to reflect that finding. The ratio between the head sentence and the non-parole period was 73.33%, which showed only a slight reduction below the statutory ratio of 75%. This, it was submitted, did not adequately reflect his Honour’s finding of special circumstances and the basis for that finding.

31 Just because a finding of special circumstances is made, does not mean that a judge must vary the statutory ratio. Where a finding of special circumstances is made, however, it seems to me that the sentencing judge ought give some reasons why the statutory ratio is not being varied despite such a finding. The variation here was so small as to not amount to an allowance for special circumstances and no reasons were given by his Honour for adopting that approach.

32 It seems to me that the sentence as ultimately fashioned, did not adequately reflect the finding of special circumstances made by his Honour and which was certainly warranted. There does seem to have been some error in his Honour’s mathematics in his final formulation of the sentence. Ground of Appeal 1 has been made out.

Ground of Appeal 2: The learned sentencing judge erred in failing to give effect to his finding that: the offence was not a planned or organised criminal activity; the offender was provoked; good character; unlikely to re-offend; and good prospects of rehabilitation.

33 Initially the applicant’s submissions in relation to this ground comprised a review of the aggravating and mitigating features of the offence identified by his Honour and a complaint that in the circumstances the sentence passed by his Honour was manifestly excessive. The following matters were emphasised: The unplanned and spur of the moment nature of the offence, the provocation, the applicant’s outstanding good character and community work, the unlikelihood of him re-offending and his good prospects of rehabilitation.

34 In reply the submission was refined to have regard to the concession by the Crown that His Honour had failed to follow the reasoning process outlined in R v Way (2004) 60 NSWLR 168 at [117-118]. It was submitted that it was difficult to see how his Honour had fixed upon a provisional non-parole period of 8 years without having carried out the Way analysis [118] and without having regard to the factors there referred to.

35 It was the Crown submission that despite this error in approach, there was no real impact on the sentence ultimately passed. This was because his Honour made appropriate adjustments to the provisional non-parole period so as to have regard to the factors referred to by the applicant in the submissions in support of Ground 2.

36 I do not agree. His Honour’s approach to s54B of the Crimes (Sentencing Procedure) Act 1999 was incorrect. His Honour, of course, did not have the advantage of the decision in R v Way. The appropriate process of reasoning was:

“117. In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: “Are there reasons for not imposing the standard non-parole period?”
118 That question will be answered by considering:
(i) The objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid-range of seriousness for an offence of the relevant kind;
(ii) The circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1).”

37 By not having regard to the factors referred to in R v Way [118] there was a strong likelihood of his Honour’s assessment of the provisional non-parole period miscarrying. This finding by his Honour was important because it provided the foundation for fixing a sentence that took as its start point a provisional non-parole period above the specified standard non-parole period. If that figure were arrived at by an incorrect process of reasoning, it placed doubt on the sentencing process as a whole.

38 Guidance was provided in R v Way as to the matters to be considered when assessing the “objective seriousness” of an offence:

“85 The multiplicity of purposes of sentencing set out in s3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as “objective” facts and matters which may affect the judgment involved in assessing “seriousness”. It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct and those factors that might properly have been said to have impinged on the mens rea of the offender …
86 Some of the relevant circumstances which can be said “objectively” to affect the “seriousness” of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example intention is more serious than recklessness), and mental illness, or intellectual disability, where that it causally related to the commission of the offence, insofar as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.
87 Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned.

88 In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the facts as mentioned above. Some of these relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s21A(2) and (3) of the Act, so far as they relate to purely objective considerations.”

39 His Honour had regard to many of those matters after not before he considered and reached a conclusion as to whether or not the instant offence was in the mid-range of seriousness for offences of this kind.

40 Given the results of his Honour’s subsequent process of reasoning in relation to the standard non-parole period when he took account of these matters, the strong likelihood is that had he applied the correct process of reasoning he would have concluded that this offence was not within the mid-range of objective seriousness for offences of this kind and consequently the standard non-parole period would not have applied. It would have remained relevant and important as a significant guidepost in the sentencing process, but it would not have been the start point and foundation for his Honour’s process of reasoning when formulating the sentence ultimately passed.

41 Although it was not put in precisely these terms in argument, it seems to me that his Honour’s error in the process of reasoning also brought about the error identified in Ground of Appeal 1. By focusing entirely upon the non-parole period, his Honour failed to have regard to the sentence as a whole and in particular the relationship between the non-parole period and the balance of term. In doing so, he fell into the error identified in R v Way [124]:

“124 The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGouty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.”

And R v P [2004] NSWCCA 218 at [26]:

“26 Notwithstanding the temptation, provided by the terms of s44 of the Crimes (Sentencing Procedure) Act, to think that his Honour’s approach of fixing the non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20 NSWLR 114 at 134 in respect of earlier legislation but in R v Way the court indicated that R v Moffitt should be followed in relation to the current wording of s44.”

42 Ground of Appeal 2 has been made out.

Ground 3: The learned sentencing judge erred by finding the applicant’s record of previous convictions was an aggravating factor.

43 It was submitted on behalf of the applicant that his Honour in terms took into account as an aggravating feature pursuant to s21A(2)(d) of the Crimes (Sentencing Procedure) Act the applicant’s two previous assault matters and erred in doing so. It was submitted that his Honour did much more than merely take those matters into account for the purposes identified in Veen v R (No 2) (1988) 164 CLR 465.

44 It was certainly permissible for his Honour to take into account the applicant’s prior criminal record if that demonstrated that this offence was not an uncharacteristic aberration. Insofar as the 1995 assault while playing pool is concerned, it did involve provocation followed by a loss of temper and an assault. These were features of the present offence. His Honour clearly had that in mind when he determined that the applicant required treatment by way of anger management. This was a permissible use of the applicant’s prior criminal record.

45 Did his Honour go further than that? He certainly referred in terms to the applicant’s prior criminal record as an aggravating factor and in the context of the application of s21A(2)(d). That and the fact that his Honour’s language did not conform to the principles in Veen (No 2) do raise a legitimate concern that the applicant’s prior criminal record was wrongly used by his Honour in the sentencing process.

Ground 4: The learned sentencing judge erred by finding the injury, emotional harm, loss or damage caused by the offence was substantial.

46 It was submitted that his Honour erred in finding that the injury caused by the offence was substantial and was an aggravating factor for the purpose of s21A(2)(g). It was submitted that this was not an aggravating factor but was an element of the offence, ie maliciously inflict grievous bodily harm where “grievous bodily harm” is a bodily injury of a really serious kind.

47 It was submitted that the significant laceration to the applicant’s face and neck was an injury of that kind but went no higher than that. The injury suffered by the applicant was not “significantly more deleterious” than that required to make out the elements of the offence.

48 It was also submitted that his Honour wrongfully had regard to the potential effect of the injury by speculating as to what might have occurred, rather than having regard to what actually occurred. The potential of the injury was not a matter which could be properly taken into account for the purposes of s21A(2)(g).

49 This ground of appeal has been made out. The nature of the injury suffered by the victim was not such as to take it outside that which was necessary to establish the element of the offence. What might have occurred had timely first aid not been provided is an irrelevant consideration when applying s21A(2)(g).

Ground 5: The sentence is manifestly excessive.

50 No specific submissions were addressed to the Court in relation to this ground of appeal. The applicant relied upon the matters raised in support of the other grounds of appeal.

51 In view of errors identified in respect of the other grounds of appeal, it is not necessary to consider this ground further.

Conclusion

52 For this Court to quash a sentence and impose a lesser one, it is not sufficient for the applicant to establish error. It is necessary that this Court be satisfied that “some other sentence … is warranted in law and should have been passed” – subs 6(3) of the Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704 at [79] and [99-100]. I am of the opinion that not only has error been shown but that some lesser sentence is warranted in law.

53 It is therefore necessary to re-sentence the applicant. This is so in order to make proper allowance for his Honour’s finding of special circumstances in the ratio between the non-parole period and balance of term and to apply the correct method of reasoning as to whether this offence is at the mid-range of objective seriousness for offences of this kind. That latter exercise would include making allowance for his Honour’s errors in the application of s21A(2)(d) and (g).

54 Section 33 covers a wide variety of offences and a diversity of injuries, including permanent brain damage, loss of limbs, restriction of eye sight and many more which would have to be seen as considerably more serious than the (admittedly serious) injury suffered by the victim. Serious as the injury suffered by the victim was, this Court does see many cases of offences against s33 which result in significantly greater injury. I doubt that the use of a glass such as occurred here should be equated in seriousness with the use of a knife or revolver. If one also takes into account the circumstances of this offence and in particular its spontaneous nature and the provocation involved, together with the other features found by his Honour which favoured the applicant, I am satisfied that the objective seriousness of this offence was not at the mid-range of objective seriousness for offences of this kind.

55 Because of that finding, it follows that the standard non-parole period of 7 years does not apply. That does not mean that the standard non-parole period ought be ignored. The standard non-parole period remains relevant as an important guidepost for sentencing purposes (R v Way [53], [122]). Against that consideration there needs to be balanced the substantial objective and subjective matters which were found by his Honour in the applicant’s favour. The above considerations require an adjustment to be made, both to his Honour’s head sentence and to the non-parole period.

56 Taking account of the objective seriousness of the offence which was not insubstantial but also the other matters which have formed the basis of this application, I propose that the sentence below be quashed and in lieu thereof the applicant be sentenced to a non-parole period of imprisonment of 4 years with a balance of term of 3 years.

Proposed orders:

57 (i) Leave to appeal granted.

(ii) The sentence passed by Ducker ADCJ on 4 March 2005 is quashed.
(iii) In lieu thereof, the applicant is sentenced to a non-parole period of imprisonment of 4 years to date from 9 December 2004 and to expire on 8 December 2008 with a balance of term of 3 years to expire on 8 December 2011.

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