Hona v The Queen

[2016] NSWCCA 119

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hona v R [2016] NSWCCA 119
Hearing dates:	18 May 2016
Decision date:	21 June 2016
Before:	Basten JA at [1] Schmidt J at [2] Wilson J at [3]
Decision:	(1)   Leave to appeal is granted. (2)   The appeal is dismissed.
Catchwords:	CRIMINAL LAW – sentencing – cause grievous bodily harm reckless as to the infliction of actual bodily harm – offence involving infliction of severe head injury – intoxication of applicant - asserted error in fact finding – whether agreed facts supported factual conclusion beyond reasonable doubt – question of whether adequate recognition given to pre-sentence custody – argument as to significance of time spent in adult gaol - argument raised for the first time on appeal – use of sentencing statistics - question of manifestly excessive sentence
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2) Crimes Act 1900 (NSW), ss 33B(1)(a), 35(2), (3), 51B(1), 154A(1)(a), 527C(1)(a) Evidence Act 1995 (NSW), s 177 Road Transport (Driver Licensing) Act 1998 (NSW), s 25(1)(A) Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 12(1)(a), 42(2)
Cases Cited:	Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA; (2005) 228 CLR 357 Passaris v R [2011] NSWCCA 216; (2011) 82 NSWLR 546 R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	David Hona (Applicant) Regina (Respondent)
Representation:	Counsel: Mr W Flynn (Applicant) Mr H Baker (Respondent)   Solicitors: Archbold Legal (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/48016
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 10 October 2014 Before: Hock DCJ File Number(s): 2014/48016

Judgment

1. BASTEN JA: I agree with Wilson J.

2. SCHMIDT J: I agree with Wilson J.

3. WILSON J: On 14 February 2014 the applicant, David Hona, was charged with an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW), the offence having been committed some two months earlier, on 14 December 2013. Such an offence carries a maximum penalty of 10 years imprisonment, and a standard non-parole period of 4 years is specified by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

4. The charge was framed in the following terms:

“…on Saturday 14 December 2013 at Campbell Parade Bondi Beach in the State of New South Wales [the applicant] did cause grievous bodily harm to Michael McEwan, and was reckless as to causing actual bodily harm to Michael McEwan.”

5. On 24 June 2014 he entered a plea of guilty to the charge against him and was committed for sentence to the District Court of New South Wales. On 10 October 2014 a sentence of imprisonment for 6 years and 9 months was imposed upon him by her Honour Judge Hock. A non-parole period of 4 years and 9 months was fixed.

6. The applicant seeks leave to appeal against the asserted severity of the sentence imposed upon him. If granted leave the applicant seeks to advance three grounds:

1. “The learned judge erred in the exercise of her discretion in drawing adverse inferences of fact which were not open beyond reasonable doubt.

2. The learned judge erred in the exercise of her discretion in failing to take into account four months the applicant spent in adult custody solely referable to this offence prior to the commencement date of the sentence.

3. The sentence is manifestly excessive”.

The Proceedings Before the District Court

7. The sentence hearing before her Honour proceeded upon the basis of facts tendered by the Crown and agreed to be accurate by the applicant. In imposing sentence upon the applicant, her Honour found the facts of the offence to be as agreed by the parties.

8. The following account is drawn from her Honour’s judgment.

9. In the late hours of Friday 13 December 2013 the applicant, who was then just weeks short of his twentieth birthday, was at a hotel in Bondi Beach accompanied by his cousin, Jamie Ennis. There was an incident at the hotel and the applicant and his cousin were ejected from the premises by security staff. The applicant and two friends went to a take away food shop where the applicant got into an argument with staff and a customer. He left the shop and went out onto the street. It was about 1.40 am on the morning of Saturday 14 December 2013.

10. Mr Ennis got into a verbal altercation with the victim, Michael McEwan, and the argument continued as Mr McEwan walked away in the direction of a bus shelter. At the bus shelter, Mr Ennis ripped Mr McEwan’s t-shirt in two, and Mr McEwan discarded it. A witness intervened and removed Mr Ennis from the area.

11. The applicant squeezed through a fence to enable him to cross Campbell Parade and walked in the direction of the bus shelter, walking around behind it to where Mr McEwan was standing.

12. As Mr McEwan stood with his arms held out and his palms open the applicant struck him to his face, using his right elbow. The force of the blow caused Mr McEwan to fall backwards. As he fell, the applicant swung another blow at Mr McEwan’s head. The victim fell backwards, landing heavily on the footpath.

13. While Mr McEwan lay unconscious on the footpath the applicant stepped towards him and “stomped” one foot forcefully into Mr McEwan’s chest. The applicant then walked off, followed soon after by Mr Ennis.

14. Ambulance personnel attended to the critically injured Mr McEwan. He was taken to St Vincent’s Hospital where he was found to have a severe head injury. He was deeply unconscious with a Glasgow Coma Score of 3 (out of 15, with 3 the lowest score available). On examination he was found to have a fracture to the occipital bone at the base of the skull and an extensive and acute subdural haematoma.

15. Immediate emergency surgery was required to relieve the pressure on his brain and save his life, with the removal of a bone flap from the skull necessary. Following surgery Mr McEwan remained in a medically induced coma for over a week. During that time Mr McEwan was returned to surgery for the insertion of a drain into his brain to further reduce the ongoing elevated intracranial pressure. He was in intensive care for some nine days.

16. During recovery, Mr McEwan developed pneumonia, which developed into a staphylococcal infection requiring treatment with antibiotics.

17. The medical opinion of the treating neurosurgeon was that Mr McEwan’s head injury was “severe” and “…without surgery and intensive medical management in the intensive care unit it would have been fatal.”

18. Mr McEwan required rehabilitation for motor function, in addition to physiotherapy, and further surgery in the ensuing months. He had ongoing problems with fatigue, dizziness, and light headedness, and was not able to continue to work full-time as he had previously done. He required daily living assistance and had to move in with his parents for a time for that aid.

19. By July 2014 Mr McEwan had regained his independence but, at the date of sentencing, further surgery was still required to correct the depression in his skull at the craniotomy site. The treating neurosurgeon noted that there would be some level of permanent cognitive decline, and that the victim would be affected by the injury for the rest of his life.

20. The applicant was not arrested until 14 February 2014. He was interviewed by investigating police, making a number of admissions including identifying himself in footage recovered from closed circuit surveillance cameras in operation in the area at the time of the offence. He told police that he had been intoxicated at the time and had limited memory of the night. He recalled scaling a metal barrier to cross Campbell Parade and seeing a man with no shirt, but had no memory of striking him.

21. The applicant said that he had been drinking since about 1pm that day, in anticipation of being sentenced the following Monday (for other offences, including reckless wounding, for which he had been called up).

Other Evidence in the Crown Case   

22. Also before the sentencing judge in the Crown case were a series of photographs of the depression and scarring to Mr McEwan’s skull, following surgical repair, together with an expert certificate pursuant to s 177 of the Evidence Act 1995 (NSW) which set out greater detail of Mr McEwan’s injuries, and what was required for his recovery.

23. A victim impact statement provided more personal detail of the toll taken upon Mr McEwan by the assault and the injuries occasioned to him. He told the sentencing court of the trauma, both physical and emotional, that the applicant’s crime had caused him, including being left unable to walk until he relearned that skill, loss of independence, inability to continue his employment, extreme fatigue, and reduced cognitive capacities.

24. The Crown tendered the applicant’s criminal antecedents, which recorded a number of entries for offences of violence, together with the facts of those earlier offences.

25. On 11 July 2011 the applicant was dealt with by Bidura Children’s Court for offences of affray, resisting police, and assaulting a police officer in the execution of duty. The offences occurred on 29 April 2011, when the applicant was aged 18 years and 3 months.

26. On that occasion the applicant became involved in an argument between his friend and another youth at a McDonald’s restaurant at Bondi Beach, throwing a number of punches at the youth, and then brawling with other youths who joined the fight. The restaurant was filled with staff and customers at the time. The applicant was arrested outside the restaurant, but was aggressive with the police and refused their directions. Two officers took hold of the applicant, at which point he punched an officer to the left side of her head, knocking her to the ground and causing injury. Other officers sought to restrain the applicant, who was swinging his arms and actively struggling against them. Ultimately, it took a number of police and one or two bursts of capsicum spray to subdue the applicant so that he could be handcuffed.

27. The Children’s Court imposed a fine upon the applicant for the offence of affray. In relation to the other offences, the applicant was placed under the supervision of the Juvenile Justice Office for 6 months pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW). The applicant was later called up for breach of the supervision orders, and on 20 June 2012, placed upon two further bonds by the Children’s Court, for a period of 18 months each.

28. On 20 June 2012 the applicant appeared before the Children’s Court in relation to offences of using an offensive weapon with intent to commit an indictable offence (intimidation), contrary to s 33B(1)(a) of the Crimes Act, and reckless wounding in company, contrary to s 35(3) of the same Act.

29. The offences occurred late at night on Saturday 17 September 2011 at a residence in Darling Point where a party was being held. A group of males attended the party but were not wanted there and were asked to leave. They did leave, but returned soon after. The applicant was among the group of males; he was armed with a knife which he had secreted in the front of his pants.

30. The applicant pulled the knife from his pants, pushed one of the partygoers up against a wall, and held the knife against his throat, demanding, “Do you want me to open you up, do you want me to kill ya?” This threat with a knife constituted the s 33B(1)(a) offence.

31. Some time after the first confrontation was diffused, one of the partygoers went out in the street whereupon he was surrounded by the group of males who all began to hit him. The applicant hit the partygoer to the stomach, leaving him feeling winded. A witness saw the applicant put something into the front of his pants after striking the partygoer. The partygoer heard a member of the group say “Boonga [the applicant] stabbed him, let’s get out of here”. The group of men, including the applicant, ran off.

32. The partygoer found that he had sustained two stab wounds to the stomach which required surgical repair. There was a further wound under an arm.

33. The Children’s Court imposed control orders pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act upon him; for 3 months in relation to the first offence and 15 months for the second, wholly concurrent. A 6 month non-parole period was specified. On appeal to the District Court the sentences were varied to a term of 100 hours community service for the s 33B(1)(a) offence and a 15 month control order, suspended, for the reckless wounding.

34. On 16 December 2013 the applicant was called up for a breach of the suspended control order, and a control order for 15 months was imposed, with a non-parole period of 6 months, to date from 16 December 2013 and expiring on 15 June 2014. The overall sentence expired on 15 March 2015. It was this sentence that the applicant had been anticipating when he went out drinking on the night of Friday 13 December 2013, intending to make the most of what he expected would be his last hours of liberty.

35. The last set of antecedent offences committed by the applicant were offences that occurred on or about 2 March 2013. At some stage in the late hours of 1 March or the early hours of 2 March 2013 the applicant broke into a Holden Commodore station wagon parked at Bondi Beach and, finding a spare key within the car, began driving it, despite not having a driver’s licence. He drove at such speed and in such a dangerous manner that he caught the attention of police on patrol in the Bondi area who activated warning lights and sirens to signal to the applicant to stop the car. He did not, and a pursuit ensued. The applicant’s flight ended when he lost control of the vehicle and crashed. When he was removed from the car he was found to be under the influence of alcohol, and in possession of a credit card in the name of another individual not known to him. He claimed to have been given the credit card.

36. Charges of take and drive conveyance (s 154A(1)(a) of the Crimes Act), drive manner dangerous (s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW)), drive without a licence (s 25(1)(A) Road Transport (Driver Licensing) Act 1998 (NSW)), drive recklessly in police pursuit (s 51B(1) Crimes Act), goods in custody (s 527C(1)(a) Crimes Act) and drive under the influence of alcohol (s 12(1)(a) Road Transport (Safety and Traffic Management) Act) all followed. The applicant was on bail for these offences at the time of committing the present offence.

37. The applicant appeared before the Waverley Local Court on 19 December 2013, receiving sentences ranging from a conviction without penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act (for the unlicensed driver charge), to a term of imprisonment for 20 months, suspended pursuant to s 12 of the same Act, for the police pursuit offence. The remaining offences were dealt with by s 9 bonds of varying length. Disqualifications from driving were imposed for relevant offences.

38. A Corrective Services history was the final document tendered in the Crown case. It showed that the applicant entered the custody of Corrective Services on 15 February 2014.

39. The Court was advised that the applicant had been in custody solely referable to this matter since 16 June 2014, with other periods of incarceration referable to earlier offences.

The Subjective Case

40. Tendered to the sentencing court by the applicant was a psychiatric report from Dr Jonathon Adams and two character references.

41. Dr Adams saw the applicant once via audio-visual link on 15 September 2014 for the purpose of preparing a report for use on sentence. The applicant was then aged 20 years.

42. The applicant described himself as a generally happy person, although he conceded using alcohol to excess and becoming aggressive and disrespectful under its influence. Although he had seen a psychologist at age 17 for assistance with his excessive consumption of alcohol and subsequent anger, and found the techniques there given to him of assistance in controlling his anger, he acknowledged having relapsed in terms of alcohol use.

43. The applicant denied any symptomology consistent with a psychiatric disorder. His health was good.

44. He admitted smoking cannabis from age 14 or 15, but denied any symptoms of drug induced psychosis. He had previously experimented with cocaine and ecstasy, but not for some years. He had, however, used alcohol consistently on weekends to intoxication, and found that he became irritable and aggressive when drunk.

45. The applicant was born in Sydney to a Greek father and a New Zealand mother and, although his parents had separated when he was a baby, he described his childhood as having been good. He was educated to School Certificate level and had done part of his Higher School Certificate studies through TAFE, leaving to pursue work opportunities.

46. At the time of the commission of the current offence the applicant was employed part-time in the construction industry with a maternal relative. He had been living with his mother at Bondi. He was subject to the suspended sentence from the District Court, and awaiting sentence in both the Local and District Courts.

47. The applicant told Dr Adams that on the afternoon of 13 December 2013 he began drinking beer and spirits. He additionally smoked cannabis. He recalled leaving his home with his cousin and a friend, but claimed to have no real memory thereafter. He said he had been “feeling good.”

48. The applicant said he vaguely recalled trying to buy a kebab in a kebab shop, and later jumping a fence in a roadway, but had no memory of what followed. He ascribed his memory loss to his state of intoxication.

49. Of the offence he said, “…it’s turned my life upside down, plus his life,” and expressed the hope that his victim would forgive him. He attributed his offence to his level of intoxication.

50. He said that he kept his spirits up whilst in custody with exercise, socialising with other prisoners, and attendance at church. He denied any drug use in prison, and had seen a drug and alcohol counsellor when in juvenile detention. He planned to pursue such counselling in the future, and also to seek out assistance with anger management.

51. Dr Adams concluded that the applicant did not have any mental illness or mood disorder, although his reported alcohol and cannabis use is in keeping with a substance abuse disorder. He believed that the applicant would benefit from psychological therapy to address drug and alcohol rehabilitation and assist him to develop strategies to avoid offending behaviour.

52. The personal references (from a neighbour and from an officer from the Waverley Action for Youth Services organisation) spoke positively of the applicant. The applicant’s neighbour found him to be a polite and helpful young man. The youth worker, who had known the applicant all his life, regarded him as a bright and honest young man who was a good student when not distracted. Alcohol and drugs were, however, acknowledged as serious issues for the applicant to confront.

53. Correspondence from an employment agency confirmed that the applicant had undertaken and almost finished a course in warehousing.

54. The applicant gave evidence before the sentencing court.

55. The applicant affirmed the truth of the history that he had given Dr Adams. He said that he had no memory of the offence but accepted the descriptions of others of his conduct, and had felt “very sad” on reading the victim impact statement (T8:04). He apologised to Mr McEwan and asked for his forgiveness.

40. The applicant told her Honour that he believed that there was a connection between his alcohol abuse and his offending behaviour, and knew he had to seek treatment and stop drinking. He intended to seek such treatment once he had been sentenced.

41. The applicant acknowledged in cross-examination that he had been given access to counselling services in fulfilment of conditions imposed upon him by the Children’s Court, but that it had not been successful. He conceded having done nothing to address his problematic substance use after being charged with the offences dealt with before Waverly Local Court, and having treated the night of 13 December 2013 as his last ‘big night out’ with his friends prior to being sentenced the following Monday.

42. His counsel acknowledged in submissions that the applicant’s history of offending, and the commission of the offence whilst subject to a suspended control order and community service order disentitled him to leniency (T18:20). He additionally conceded that the applicant had crossed the road to “engage” the victim (T20:12).

The Sentence Judgment

59. Sentence proceedings were heard on 2 October 2014 and her Honour imposed sentence on 10 October 2014.

60. After setting out the agreed facts of the offence, her Honour concluded that an important feature of those facts was that the applicant had deliberately sought out the victim, to the extent of crossing the road, to attack him with a blow of some force, at a time when Mr McEwan’s physical stance indicated that he did not want confrontation. She regarded the applicant’s final act of stomping on the unconscious victim as he lay on the ground as a “particularly despicable and cowardly act” (T4). Her Honour referred to the severe and life threatening injuries gratuitously inflicted upon Mr McEwan by the applicant, which would certainly have been fatal but for medical intervention, and to the long term detriment to him.

61. The sentencing judge concluded that the offence involved a high level of objective gravity and fell well above the mid-range for such an offence.

62. The sentencing judge next turned to the applicant’s personal circumstances, setting out the detail of his criminal history, and his history for offences of violence when subject to conditional liberty in the community. The sentencing judge observed that at the time of the current offence the applicant was subject to bail for the offences that involved a police pursuit, and to a suspended control order and community service order for the Darling Point offences. Her Honour noted that the applicant’s record disentitled him to leniency.

63. Her Honour referred to the report of Dr Adams and to the applicant’s apparent understanding of the link between his excessive consumption of alcohol and his history of offending. She noted the support available to him from family and others, but found his prospects of rehabilitation difficult to assess, in that they were dependent upon the applicant making good his stated intention to address his alcohol and drug problems. Her Honour concluded that, if the applicant did as he proposed, his prospects of achieving rehabilitation were reasonable.

64. Referring to the applicant’s youth and the need for rehabilitation to be given emphasis in the exercise of the sentencing discretion for young offenders, her Honour noted what had fallen from this Court in R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 wherein it was held that general deterrence had to be given substantial weight to deter intoxicated young men from acts of violence in the street. Having regard to the applicant’s criminal history, her Honour concluded that specific deterrence and denunciation were also important.

65. The utilitarian value of the plea of guilty entered by the applicant to the offence before the Local Court was recognised by a discount of 25% on the sentence that would otherwise have been imposed.

66. Her Honour considered the principle of totality having regard to the expiration on 15 June 2014 of the non-parole period of the sentence imposed upon the applicant upon revocation of a suspended control order, but concluded that there was no basis for concurrency with that sentence.

67. Although a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act was made, the finding reflected the requirements of totality rather than a need for a longer non-parole period, and the adjustment to the usual statutory ratio was slight.

The Application for Leave to Appeal

Ground One: The learned judge erred in the exercise of her discretion in drawing adverse inferences of fact which were not open beyond reasonable doubt

68. The adverse inference of fact that the applicant complains the sentencing judge wrongly drew is twofold: that the applicant “…deliberately sought out another young man, in that he crossed the road to attack him”; and, that he struck the victim with an elbow “…with such force that he fell backwards so heavily that he sustained a very severe head injury.”

69. In the applicant’s written submissions (“AWS”), written by Ms Moen rather than by counsel who appeared before us, Mr Flynn, it is asserted that there was no evidence that the applicant crossed the road to attack the victim, and the concession made by counsel during the proceedings on sentence, that the applicant crossed the road to “engage” the victim, was not defined and was capable of many meanings. It was submitted that it was not open to her Honour to find as she did beyond reasonable doubt.

70. This ground can be dealt with quickly since it is an empty argument of semantics and not one of substance. Contrary to the argument in the AWS, both the agreed facts and counsel’s concession entitled her Honour to find the facts as she did.

71. The facts referred to the involvement of the applicant’s associate, Mr Ennis, in an argument with the victim that moved along the roadway, which ended at the bus shelter when Mr Ennis was pulled away by a witness. To reach the scene of the altercation, the applicant had to move over or through a metal fence separating the lanes of opposing traffic on Campbell Parade, walk around behind the bus shelters and then into the bus shelter where Mr McEwan was standing, gesturing as to his unwillingness to involve himself in confrontation. The applicant’s movement suggests deliberation and intent of purpose.

72. On reaching Mr McEwan, and despite the victim’s gesture of peaceful intent, the applicant immediately struck him a blow of sufficient force to knock him off his feet. There was no preceding conversation or exchange of any sort.

73. Only one other possible explanation for the applicant’s conduct was suggested in the AWS, being an intention to engage verbally with Mr McEwan. That possibility is precluded by the fact that there were no words spoken by the applicant at all; he moved immediately to Mr McEwan and hit him. Since there was nothing preventing him from speaking to Mr McEwan, it could not have been his intention to do so.

74. The purposeful movement of the applicant in scaling the fence and striking Mr McEwan immediately on coming up to him is evidence upon which it was open to her Honour to infer that such was the applicant’s intent when he crossed the road and moved towards him.

75. Counsel’s concession during the sentence proceedings makes that plain. The contention in the AWS that counsel was not asked to define the word he used to describe the applicant’s intention in crossing the road, “engage”, ignores the context in which the concession was made, that being an exchange between the sentencing judge and counsel as to whether the offence was planned. With that as the background, her Honour asked the applicant’s counsel (T20:09):

“He sought him out though didn’t he? […] Didn’t your client seek out the victim?”

76. The response to that question (T20:12-17) as it went to the level of planning was:

“From across the other side of the road – the victim is engaged in an affray of some description [an entirely incorrect characterisation on the evidence, there being no suggestion Mr McEwan was involved in any wrongdoing] with the offender’s friend. He sees that and he crosses the road to engage the victim. Once again, that’s conceded. The level of planning involved in that your Honour, is it’s much less than it would if he was, for example, sitting at home, well I’m going to go and get this particular person ...”

77. In that exchange, counsel was clearly contrasting a crime planned to the extent of formulating the intention when elsewhere and then seeking the victim out, and one planned from the short distance of “across the road”.

78. Having regard to the agreed facts, counsel’s concession was an appropriate one, and the applicant is bound by it: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, at [81].

79. The second asserted error seems to rely upon interpreting the sentencing judge’s reference to “such force” that the victim fell backwards heavily, as a reference to a high or extreme level of force. There is no basis for reading the impugned sentence in the way contended by the applicant. The reference to “such force” by the sentencing judge meant no more than that the degree of force was sufficient to lead to the consequence, that being that Mr McEwan fell back heavily and struck the ground, receiving a significant head injury.

80. That conclusion was inevitable and there can be no error in it.

81. This proposed ground is not made out.

Ground Two: The learned judge erred in the exercise of her discretion in failing to take into account four months the applicant spent in adult custody solely referable to this offence prior to the commencement date of the sentence

82. The applicant asserts that the sentencing judge failed to take into account a material consideration, being the fact that he was subjected to what is described in the AWS as “additional punishment” (p 4), being four months spent on remand in an adult gaol, when also serving what remained of the non-parole period of the control order imposed on 16 December 2013 following breach of the suspended control order. The “additional punishment” is a reference to the contrast between time spent in an adult gaol and time spent in a juvenile detention facility.

83. The applicant commenced serving the control order on 16 December 2013, an order served in a juvenile detention facility. On 14 February 2014 he was charged with the current offence, and refused bail by the Local Court. After he was remanded in custody the applicant was transferred from the detention centre in which he had been housed to a remand facility operated by the Department of Corrective Services. He remained in such custody serving the balance of the control order, and on remand for the present offence.

84. The applicant’s argument before this Court is that the transfer of the applicant to an adult prison from a juvenile detention facility represents “additional punishment” which should have been taken into account by the sentencing judge when fixing the sentence to be imposed upon him, and reflected by some diminution of sentence or concurrency with the control order.

85. The first thing to note about this asserted error is that the sentencing judge was never asked to allow the applicant some specific benefit on sentence to reflect the changed conditions of his custody upon remand for this offence. Nor was any evidence called before the sentencing court as to the practical differences between a juvenile detention facility and a gaol, or the differing conditions of custody. Although the applicant gave evidence, the only distinction he drew between juvenile and adult custody was that he had seen a doctor about his alcohol consumption whilst at the Frank Baxter Centre, but was unable to access counselling whilst on remand (T11). There was no reference in evidence or submission to the change of custodial environment as relevant to the exercise of the sentencing discretion.

86. Reference was earlier made to the authority of Zreika: an appeal to this Court is not an opportunity for a second chance at presenting a case to a sentencing court. In the absence of error leading to a miscarriage of justice that cannot go uncorrected, an applicant for leave to appeal against sentence to this Court is ordinarily bound by the case he or she presented on sentence at first instance. It is not to the point that newly appointed counsel would have made different submissions or presented the case in a different way, or that counsel asked to prepare a matter for appeal and searching for a basis to contend for error devises a new argument that could have been put at first instance but was not.

87. A sentencing judge could rarely be found to be in error for not doing that which he or she was not asked to do.

88. Even without her Honour being specifically referred to the issue here, the matter was generally considered by her in the context of totality, with her Honour concluding that there should be no concurrence between the sentence she imposed and that imposed on 16 December 2013.

89. Since there was no basis for concurrency in the facts of the two sets of offences (see Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41) and the principal of totality did not demand a degree of concurrency, the course adopted by her Honour, to commence the current sentence at the expiration of the earlier non-parole period, was entirely open to her.

90. The sentencing judge did make a finding of special circumstances consistent with the totality principle, which resulted in a reduction in the non-parole period that would otherwise have applied of almost four months.

91. Had her Honour allowed the degree of concurrency suggested in the AWS by directing the sentence commence on 14 February 2014, the applicant would have served just two months imprisonment for stabbing a young man twice in the stomach. Such a result would have been contrary to the interests of justice.

92. This proposed ground has not been made good.

Ground Three: The sentence is manifestly excessive

93. The applicant’s argument in support of this ground is that the notional starting point for the sentence imposed, prior to the application of the discount on sentence of 25%, must have been one of 9 years imprisonment, and that this is manifestly excessive having regard to the applicant’s youth, remorse and favourable prospects for rehabilitation.

94. This ground must be determined in light of well settled and long standing authority that holds that sentencing judges are to be allowed as much flexibility as is consonant with the proper application of sentencing principles and consistency of approach: Markarian v The Queen [2005] HCA; (2005) 228 CLR 357 at [28] and Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].

95. In any sentencing exercise there will be a range of possible sentences that could be imposed without error; the fact that a sentence falls at the upper end, or even at the top of, the available range does not make it manifestly excessive, any more than a sentence at the lowest end of the range is necessarily manifestly inadequate.

96. Despite the caution which this Court frequently urges on the use of sentencing statistics, statistics for the period January 2008 to June 2015 are relied upon in the AWS to make good the argument. The applicant highlights one of the cases caught by the statistics cited, Passaris v R [2011] NSWCCA 216; (2011) 82 NSWLR 546.

97. Sentencing statistics do no more than show a range of sentences imposed on other offenders charged with the same offence in the past. They say nothing about the facts of the particular cases, or the personal circumstances of the particular offenders. They permit no meaningful comparison or analysis.

98. Additionally, they can present a somewhat skewed picture, since they encompass sentences held to be inadequate on appeal but nevertheless allowed to stand by an appellate court in the exercise of its residual discretion.

99. In the present case, statistics are markedly inapposite because the available statistics do not provide for a category of offender (which the applicant falls within) who was subject to multiple forms of conditional liberty at the time of the commission of the offence, one of which was for a similar prior offence.

100. In the applicant’s case, the sentencing judge had to impose sentence for a gravely serious example of an offence that carries a maximum sentence of 10 years imprisonment with a standard non-parole period, still relevant as a guidepost despite the applicant’s guilty plea, of 4 years.

101. Her Honour concluded that the offence was one of a high level of objective gravity, well above the middle of any notional range of seriousness. That finding was open to her having regard to the following features of the matter:

1. The fact that the applicant sought out his victim, crossing a road with the intention of attacking him;

2. He did so after the verbal altercation between the victim and the applicant’s friend had ended;

3. He violently attacked a man who was clearly indicating that he wanted no trouble;

4. He delivered a blow sufficiently forceful to knock the victim from his feet so that his head collided with the ground;

5. Having knocked his victim to the ground, and when he was unconscious and completely unable to defend himself, the applicant delivered another forceful blow with his foot to the victim’s chest;

6. The injuries occasioned to Mr McEwan were severe, and would have been fatal had it not been for timely and comprehensive medical intervention; and

7. Mr McEwan has been left with some level of permanent impairment, with cognitive decline.

102. The seriousness of the offence called for a stern sentence. The fact that human ingenuity and imagination may be able to suggest a more serious version of an offence of this type does not diminish the gravity of this particular example.

103. Her Honour had also to consider the applicant’s subjective case, but there was nothing in his personal circumstances which dictated any significant amelioration of sentence.

104. Whilst youth was a feature to be considered, it had to be balanced against the need for denunciation of the particular offence, and the significant role for both specific and general deterrence to play in the sentencing exercise. The fact that the applicant was subject to bail and a suspended control order at the time of the offending was a matter of serious aggravation.

105. In recent dicta from this Court youth has been held to be a feature of lesser relevance than that of general deterrence where offences of street violence are concerned, offences typically committed by young men emboldened by excessive consumption of alcohol. In R v Loveridge, at [103] – [105], the Court said:

“103. Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27].

104. This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].

105. The use of lethal force against a vulnerable, unsuspecting and innocent victim on a public street in the course of alcohol-fuelled aggression accompanied, as it was, by other non-fatal attacks by the Respondent upon vulnerable, unsuspecting and innocent citizens in the crowded streets of King Cross on a Saturday evening, called for the express and demonstrable application of the element of general deterrence as a powerful factor on sentence in this case.”

106. Although rehabilitation was a relevant consideration, it is not accurate to say, as the applicant does in his written submissions, that his prospects in that regard were favourable. As her Honour noted, the applicant had been extended considerable leniency by sentencing courts in the past, and given the opportunity to access anger management and drug and alcohol counselling in the community. He had not made the most of the opportunities extended to him. His prospects for the future were entirely dependent upon the applicant himself, and whether he was prepared to make good his stated intention to address his substance abuse and offending conduct.

107. In short, the subjective case was not such as to ameliorate the penalty to be imposed upon the applicant.

108. I am not able to conclude that the sentence imposed upon the applicant is unfair or unjust. Accordingly, this ground has not been made out.

Conclusion

109. Having regard to the applicant’s relative youth, and the length of sentence imposed upon him, I would grant leave to appeal, but I would not uphold it. Accordingly, I propose the following orders:

1. Grant the applicant leave to appeal; and

2. Dismiss the appeal.

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Decision last updated: 21 June 2016