Holten v The Queen

[2009] NSWCCA 234

New South Wales
Court of Criminal Appeal

CITATION:	Holten v R [2009] NSWCCA 234
HEARING DATE(S):	2 September 2009
JUDGMENT DATE:	16 September 2009
JUDGMENT OF:	Tobias JA at 1; Hoeben J at 50; Hulme J at 51
DECISION:	(a) Leave to appeal granted. (b) Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - Appeal and new trial - Appeal against sentence – Applicant pleaded guilty to maliciously inflicting grievous bodily harm – Received sentence of six years imprisonment with a non-parole period of three years and six months – Sentencing judge correct in finding that conduct fell within middle range of objective seriousness – Sentencing judge entitled to take into account lengthy history of violence – Appeal dismissed – Recommendation that applicant receive alcohol and anger management rehabilitation -
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
PARTIES:	Wayne Charles Holten Regina
FILE NUMBER(S):	CCA 6720/08
COUNSEL:	A: In person R: Ms M Cinque
SOLICITORS:	A: In person R: S Kavanagh Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6720/08
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	5/6/08

CCA 2008/6720

TOBIAS JA
HOEBEN J
R A HULME J

Wednesday 16 September 2009

WAYNE CHARLES HOLTEN v R

Judgment

: The applicant, Wayne Charles Holten, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Garling on 5 June 2008 for one count of maliciously inflicting grievous bodily harm with intent to do so contrary to s 33 of the Crimes Act 1900. The offence charged carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years.

The sentence imposed

2 The applicant pleaded guilty to the charge at the first opportunity and the Sentencing Judge allowed him the full 25% discount for his plea. His Honour sentenced the applicant to a non-parole period of three years and six months with a balance of term of two years and six months. The total term of six years was to date from 20 March 2008. Accordingly, the applicant will be eligible to be considered for release to parole on 19 September 2011.

The relevant facts

3 At the sentencing hearing the Crown tendered a Sentencing Summary of the relevant facts which the Sentencing Judge noted in his Remarks on Sentence (ROS) was to an extent based on eye-witness accounts (at 4). Also tendered were photographs of the injuries sustained by the victim. I mention the foregoing as his Honour acknowledged (at ROS 4) that the facts so presented to him differed slightly from the oral evidence given by the applicant as to what occurred on the night in question.

4 The facts accepted by the Sentencing Judge were stated by him in the following terms:

“The victim was 16 years of age. At about 9.20 on Thursday 20 March 2008, he was walking past the Port Macquarie Bus Terminal in the company of three friends. They were on their way to another hotel and had been drinking prior to their arrival at this area. As the victim was walking towards the bus terminal, he noticed the prisoner standing over a female who was seated on the bus stop bench seat. He thought that the offender was intimidating the lady so he walked into the bus terminal. Two other boys stood nearby. As the victim entered the bus terminal he noticed the female had a black eye. He said to her ‘Are you all right, how did you get your black eye?’ The Prisoner responded ‘It’s none of your fucking business’. The offender then walked over to the victim, stood chest to chest, and the victim said ‘It’s not cool to hit girls’. The prisoner grabbed the victim by the shirt, threw a punch which missed, the victim threw a punch back at him and they began to wrestle. The police were patrolling in the area, they noticed the fight and they noticed that one of the other boys was attempting to break up the fight. Police officers approached the fighting men. They saw that the prisoner had the victim in a head lock. The police then said ‘Mate let him go. The police are here now, let him go’. It was at this point that both police officers observed the prisoner lean around the victim’s head and bite him on the ear. He remained biting down on his ear for approximately five seconds. Police eventually grabbed the prisoner and physically pulled him away. The victim was bleeding profusely from the ear, and was jumping around in a lot of pain. The prisoner was arrested. He was not interviewed because of his level of intoxication.”

5 His Honour accepted (at ROS 2) that the victim had sustained permanent disfigurement of his ear, which required repair in the emergency department of the hospital to which he had been conveyed and which might require further surgery in the future.

6 When sentencing the applicant, his Honour took into account one matter on Form 1 which alleged that on 20 March 2008 the applicant breached an interim apprehended violence order by approaching a protected person, a Ms Alaban, who was in fact the female referred to as being in the company of the applicant at the time of the commission of the subject offence.

7 At the hearing of his application to this Court the applicant was self-represented. He asserted that some of the facts accepted by the Sentencing Judge were incorrect, repeating some of the evidence which he had given at the sentencing hearing and which constituted the differences which his Honour had acknowledged at ROS 4 between the facts as found and the applicant’s version thereof.

8 The applicant repeated, consistently with his evidence before his Honour, that he had not sworn when he told the victim to mind his own business and to go away; that he was not standing over his girlfriend and that they were merely sitting in the bus shelter drinking from a bottle of bourbon and coke before proceeding to the residence of the applicant’s mother. The applicant further asserted in his oral submissions to this Court that he had not bitten off part of the applicant’s ear although in cross-examination he had agreed (at Tpt p. 10) that although he had not planned to bite off a portion of the victim’s ear, he had in fact done so.

9 As I have noted, his Honour acknowledged that there were some differences between the applicant’s version of what occurred and the statement of facts tendered by the Crown based upon the accounts of eye-witnesses. But those differences were, as his Honour also noted (at ROS 4), “slight” and, in my view, could not have made any difference to the sentence which he ultimately imposed.

The applicant’s criminal history

10 The Crown tendered a history of the applicant’s previous convictions which his Honour described (at ROS 3) as an “extensive criminal record”. In particular, it included numerous convictions for offences of violence commencing with that of assaulting police in 1981. From that time until the date of the offences in question, the applicant had been arrested and convicted on a relatively regular basis for the offences of common assault, assault police, assault occasioning actual bodily harm and, in 1989, that of malicious wounding for which he received a term of imprisonment of five years with a non-parole period of two years and six months. However, he served the whole term due to breaches of parole.

11 According to my count, there were some 34 convictions for offences involving violence between 1981 and 2008 or 21 if one excludes offences of resisting or hindering police. His Honour (at ROS 5) determined that he was not going to find any particular aggravating factors apart from the applicant’s lengthy criminal history of violence. That antecedent criminal history was clearly a proper factor which the Sentencing Judge was entitled to take into account in accordance with the principles established in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-478 [14] and Regina v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at 572-573 [18]-[22].

12 As stated in the passage from the joint judgment in Veen to which I have referred,

“[t]he antecedent criminal history [of the applicant] is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders in committing further offences of a like kind.”


The foregoing remarks are clearly applicable to the present case.

The Sentencing Judge’s findings

13 The Sentencing Judge referred (at ROS 3) to the applicant’s subjective case observing, accurately, that he had experienced a very unfortunate and difficult life and that his background was replete with personal family tragedies. His Honour also noted (at ROS 4) that the applicant had apologised for his behaviour on the occasion in question and that he desired to rid himself of his alcohol addiction so he could lead a useful life and stay out of jail.

14 With respect to the objective seriousness of the offence, his Honour said (at ROS 4-5):

“As I said earlier he has pleaded guilty, he has shown some remorse. He has had a very unfortunate life, an unfortunate background, that is something which I take into account. On the other hand, this is a most serious offence. It is an offence in which there is a maximum penalty of twenty-give years imprisonment, with a standard non-parole period of seven years. His offence, in my view, falls at about the middle of the range of seriousness of these offences. The reason I say that is the victim was a young lad only 16 years of age. The victim was silly enough to get involved in something that really was probably not his business. There is no suggestion that the lady was being assaulted at the time. Once the argument, the brawl started, the victim no doubt should have attempted to break away from it. However, what makes this serious and brings it in my view into the middle range is that the prisoner, a man in his forties, a man with an extensive record for violence, a man who could not have been scared of this young boy, was then in a position where the police arrived, and the police themselves have said to him ‘Let go’, in effect to move away and they will sort it out, and it is at that stage that he bites this young lad’s ear so seriously that he sustains the injuries he did. That was totally unnecessary. That makes it, in my view, serious. I take into account the prisoner was obviously affected by alcohol at the time, and that can explain why he did what he did, but not excuse it.”

15 The Sentencing Judge then noted (at ROS 5) that as the applicant had pleaded guilty he was not bound to sentence him to the standard non-parole period of seven years although he was obliged to have regard to it when imposing an appropriate sentence.

16 His Honour then stated (at ROS 5) that the matter was one in which the applicant had to be sentenced in such a way that he would realise that he could not offend in this manner and so that others in the community also understood that they could not similarly offend. He then referred to sentencing statistics for the offence in question noting that the greater percentage of offenders received a sentence of six years imprisonment and that the statistics varied generally between terms of imprisonment of four years and 12 years.

17 After taking all factors into account, and finding special circumstances being the applicant’s need for rehabilitation with respect to both his alcohol addiction and anger management, his Honour imposed a total sentence of six years imprisonment with a non-parole period of three years and six months. The 25% discount for the applicant’s plea of guilty indicates that his Honour’s starting point was a sentence of imprisonment of eight years, well within the range of sentences revealed by the statistics to which he had referred.

The applicant’s grounds of appeal

18 The applicant’s grounds of appeal were provided in the form of some 10 written submissions. The Crown helpfully converted those submissions into grounds of appeal which it is convenient to adopt. The applicant did not suggest that the grounds of appeal as drafted by the Crown did not properly reflect the submissions he was seeking to make. I shall deal with each in turn.

Ground 1 – Two of the boys involved that evening were under the age of 18 and the law was not put to use against the publican of “Finnians Irish Tavern”.

Ground 8 – Two out of the four men were underage and were drinking at a pub for hours.

19 The essence of the applicant’s submissions on these grounds was that the victim and one or more of his accompanying friends were underage and that the law should have been enforced against the publican who permitted them to drink on his premises. He submitted that if those persons, including the victim, had been prevented by the publican from drinking then, as I understand what the applicant seeks to put, he and his girlfriend would not have been accosted by the victim and his friends and the incident in question would not have occurred.

20 What the applicant asserts may well be correct, but it has no relevance to the sentencing exercise which his Honour had to conduct with respect to the offence to which the applicant had pleaded guilty. As the Crown correctly submitted, the Sentencing Judge was concerned with the applicant’s conduct and not with what might or might not have happened had the victim and his friends not been permitted to indulge in underage drinking.

Ground 2 – The CCTV footage would show an unprovoked assault on the applicant while he was sitting down next to his girlfriend.

21 In his evidence on the sentencing hearing, the applicant stated that the victim started to lay into him, hitting him on both temples as a consequence whereof he jumped up and grabbed him. He asserted that the victim then pushed him into the back wall of the bus shelter and as the victim’s ear was near to his mouth, he bit into it. He submitted that he was dizzy and scared as it was four against one and he was doing no more than protecting himself and his girlfriend, who was as drunk as he was. He fought back the best way he could and ended up biting the victim’s ear.

22 Although the applicant asserted that the relevant part of the bus shelter was covered by a CCTV camera, the Sentencing Judge had before him the applicant’s version of events which he acknowledged involved slight differences from the facts which he accepted. Although the Crown suggested that there was no CCTV camera in place at the time, this is irrelevant. His Honour made findings of fact which were clearly available to him and, in his ROS, acknowledged in the passage referred to at [4] above that the victim got himself involved in something that was not his business and that, once the brawl started, the victim should have attempted to extract himself from it. The finding which his Honour made, and which was available to him notwithstanding the applicant’s evidence to the contrary, was that the applicant was a man in his 40s who could not have been scared of his much younger victim yet deliberately bit his ear in circumstances which his Honour described as “totally unnecessary”. There is, therefore, no substance in this ground of appeal.

Ground 2A – The applicant did not bite off a large piece of the victim’s ear.

23 The applicant both in his written and oral submissions denied that he bit off a piece of the victim’s ear. However, as I have indicated, in cross-examination he acknowledged that he had done so. But whether or not he actually separated part of the victim’s ear from the rest of the ear, it is clear from the photographs and the evidence that he deliberately bit into the victim’s ear in a manner which resulted in its severe disfigurement.

24 Accordingly, whether or not the applicant actually bit off a piece of the victim’s ear could not affect the objective seriousness of the applicant’s conduct.

Ground 3 – The applicant originally claimed self defence. The applicant’s solicitor advised him that if he pleaded guilty he would get “18 months or 2 years at worst”. The applicant changed his plea on the advice of his solicitor; and

Ground 9 – Knowing what he knows now the applicant would not have changed his plea.

25 The applicant was charged on 20 March 2008. The Crown’s Sentence Summary which was an exhibit before the Sentencing Judge noted

“Plea entered at first available opportunity – before brief served. Full discount appropriate.”

The applicant maintained his guilty plea before His Honour and received a full discount of 25% on his sentence.

26 As the Crown submits, it may be that the essence of these grounds is that the applicant would not have pleaded guilty if he had known that he was likely to receive the sentence which was in fact imposed upon him. However, Ground 3 is inconsistent with Ground 9 for in the latter the applicant submitted that knowing what he now knows he would not have changed his plea.

27 There is some suggestion in the applicant’s third submission that he may have received inaccurate legal advice as to the sentence he would receive if he pleaded guilty compared to what he would receive if he unsuccessfully pleaded self-defence. However, at [31] of the applicant’s written statement dated 3 June 2008 and tendered before his Honour, he recognised at the outset that he was guilty of the offence in question because of his own conduct and that he had no excuse. He also acknowledged that he should receive a jail sentence.

28 Further, in his oral evidence before the Sentencing Judge, when asked whether he agreed that he had pleaded guilty to the elements of the offence, the applicant replied:

“Yeah, well I’m guilty of biting him, yes.”

29 Nonetheless, in cross-examination he said that he did not think he should go to jail because he had not set out on that night to get into a fight. But he acknowledged that although he did not plan it, he had committed the offence of maliciously inflicting grievous bodily harm by biting off a portion of the victim’s ear.

30 In the foregoing circumstances, there is no substance in the applicant’s submission to the extent to which he asserts that he may have changed his plea had he known that he was to receive the sentence in fact imposed upon him.

Ground 4 – With respect to the definition of “aggravated” the applicant asserts that he did not provoke the three young men and he did not have “evil” in him.

31 In his written submissions the applicant relies upon the dictionary meaning of the word “aggravated”, namely, “to make worse or more severe”; intensify, as anything evil”. He submits that there was nothing evil in him on the present occasion and that he certainly did not provoke the victim or his friends.

32 The Crown submits that the Sentencing Judge was using the word “aggravating” in the context of s 21A of the Crimes (Sentencing Procedure) Act 1999. This was permissible only insofar as his Honour took the applicant’s lengthy history of violence into account as justifying the giving of greater weight to the necessity for personal and general deterrence rather than as a factor increasing the objective criminality of the applicant’s conduct.

33 In my view this was the approach his Honour adopted and it was in that sense that he referred to the applicant’s criminal history of violence as “aggravating”. Thus, prior to that reference he had already found that the applicant’s conduct fell within the mid-range of objective seriousness and in the paragraph of his ROS immediately following the reference, he noted that the applicant needed to be sentenced in

”such a way that he realises he cannot offend in this way and others in the community also understand they cannot offend in this way.”

34 Accordingly, there was nothing inappropriate in his Honour’s use of the term “aggravating” in the context to which I have referred notwithstanding the applicant’s submission that he had not had any evil intent prior to the incident in question. This ground of appeal should be rejected.

Ground 5 – The applicant has not committed an offence involving the use of a weapon since 1989.

35 The applicant submits that apart from the incident in 1989 when he was convicted of malicious wounding, all his other convictions were for the offence of common assault and that he had not used a weapon since 1989 when he stabbed his former girlfriend who had borne him a son who had been tragically murdered. However, although his record of previous convictions indicates many common assaults, there are also a number of occasions when he was convicted of assault occasioning actual bodily harm.

36 In any event, the fact (apart from the stabbing incident) that he had never used a weapon notwithstanding his numerous convictions for violent conduct was not a matter that was put to the Sentencing Judge and was, in any event, irrelevant to the sentencing process which his Honour undertook.

Ground 6 – (i) The Sentencing Judge erred in stating that the applicant “went after” his former girlfriend and stabbed her (in 1989); (ii) The applicant’s legal representative did not tender any psychiatric report or psychological report which might have assisted his case.

37 At ROS 3, during the course of recounting the evidence the applicant had given, his Honour said:

“He went after his former girlfriend and he stabbed her.”

The applicant is recorded as saying at that point

“No, I didn’t go after her.”

38 His Honour was thus aware of the applicant’s response to his choice of language which was in any event immaterial, given the fact that the applicant did in fact stab his former girlfriend as he blamed her for the tragic death of their son.

39 With respect to the second part of this ground, the Crown submits, and I accept, that the applicant had not asserted any matters which might appropriately have been the subject of a psychiatric or psychological report. The applicant gave extensive evidence before his Honour, both written and oral, with respect to his background and which his Honour acknowledged as being unfortunate and troubling. Furthermore, the applicant gave oral evidence in which he acknowledged his problems with alcohol and with his temper, which he had difficulty in controlling. He further acknowledged that he could not stay off alcohol without help and that he found it difficult to give it up due to his addiction to it.

40 The Sentencing Judge acknowledged these factors by his finding of special circumstances, being the applicant’s need for rehabilitation with respect to his alcohol addiction and for anger management. That finding was reflected in his alteration of the statutory ratio of the non-parole to parole periods of the sentence. No relevant error on his Honour’s part has been demonstrated.

Ground 7 – It has been insinuated that the applicant deliberately goes around biting people to infect them.

41 No evidence of the insinuation referred to was before his Honour and there was nothing to suggest in the applicant’s criminal history that any of the offences involving violence of which he had been convicted involved his biting of his victim. Accordingly, this ground has no substance.

Ground 10 – The applicant’s friend was charged with the same offence and pleaded not guilty and received a lesser sentence.

42 As the Crown submits, the document produced by the applicant in support of this ground actually records his “friend” Robert Bottrell as having been given a sentence greater than that of the applicant, namely, a non-parole period of five years with an overall sentence of eight years. In any event, no issue of parity can possibly arise as a consequence whereof the applicant’s understandable submission with respect to Mr Bottrell is misconceived.

Some additional remarks

43 Although there is no ground of appeal asserting that the sentence imposed by his Honour upon the applicant was manifestly excessive, I should state that in my view, had any such ground of appeal been asserted, it would not have been successful. There is no doubt that his Honour was correct in finding that the applicant’s conduct fell within the middle range of objective seriousness for the offence in question. In the circumstances, a condign punishment was warranted. Thus, as his Honour acknowledged, although he was not bound to sentence the applicant to the standard non-parole period of seven years as he had pleaded guilty, nevertheless he was bound to take that benchmark into account. Ultimately, given the applicant’s lengthy history of violence which his Honour was entitled to take into account, and did so, a non-parole period of one half of the standard non-parole period was clearly within the range of a proper exercise of his Honour’s sentencing discretion.

44 Before concluding these reasons I would wish to add the following observations, hopefully which may assist the applicant as an unrepresented person to better appreciate why his appeal has failed. As I have said, the applicant’s subjective case reveals a tortured life aggravated by a number of personal tragedies. He has a long and worrying criminal history involving crimes of violence. It is clear from the applicant’s own evidence and from the nature of that history that it is in large part due to his addiction to alcohol and his inability, particularly when intoxicated, to control his temper.

45 That he exhibits anger when intoxicated is no doubt in large measure due to his personal circumstances as detailed in his written and oral evidence before his Honour and which reveal a deprived childhood as well as other deprivations which have dogged his life.

46 But the applicant’s anti-social conduct cannot be allowed to continue unabated. One of the primary purposes of the sentencing process is to design a sentence which will act as a personal deterrent to the applicant re-offending. He is now 45 years old and the time has come for him to reflect on his future and to take active steps to rehabilitate himself as he told his Honour he wished to do. He said (at Tpt p. 13) when asked what he wanted to do with his life:

“I want to straighten myself out and get my kids back and bring them back home …”

47 He acknowledged that he would only achieve this if he conquered his alcohol addiction. That appears to have been the root cause of his breaches of the law as his history of assault police and resist arrest testifies. He now has a further two years in jail and then a further two and a half years on parole under supervision to achieve his future life objectives. I accept that, as he himself said, he needs help to do this.

48 I would therefore respectfully urge the authorities to make every effort to provide the help the applicant needs both while he is incarcerated and upon his release to parole. If this requires him to be accommodated in a correctional institution which is able to provide intensive alcohol and anger management facilities, then every reasonable effort should be made to give the applicant the chance that he appears genuinely to seek at this point in his life. I commend the foregoing to the authorities accordingly.

49 Having attempted to make my point, I would propose the following orders:

(a) Leave to appeal granted.
(b) Appeal against sentence dismissed.

50 HOEBEN J: I agree with Tobias JA and the orders he proposes.

51 R A HULME J: I agree with Tobias JA.

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