Leonard v The Queen

[2019] NSWCCA 300

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Leonard v R [2019] NSWCCA 300
Hearing dates:	29 November 2019
Decision date:	20 December 2019
Before:	Gleeson JA at [1] R A Hulme J at [2] Button J at [3]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW – Application for leave to appeal against sentence – Two offences of violence, including choking into unconsciousness – Self-represented applicant – Whether sentences should have been wholly concurrent – Whether interference warranted on any other basis – Grounds lacking in merit – Application for leave refused
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 166
Category:	Principal judgment
Parties:	Matthew Johnathon James Leonard (Applicant) Regina (Crown)
Representation:	Counsel: Self-represented (Applicant) E Wilkins SC (Crown)   Solicitors: Solicitor for the Public Prosecutions (Respondent)
File Number(s):	2018/80358
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 04 April 2019 Before: Judge Norrish QC File Number(s): 2018/80358

Judgment

1. GLEESON JA: I agree with Button J.

2. R A HULME J: I agree with Button J.

3. BUTTON J:

Introduction

4. Mr Matthew Johnathon James Leonard (the applicant) represented himself in this Court on an application for leave to appeal against sentences imposed upon him by his Honour Judge Norrish QC on 4 April 2019. The most serious offences for which the applicant was imprisoned were assaulting a young woman and occasioning actual bodily harm to her (an offence that carries a maximum penalty of imprisonment for five years) and, separately, intentionally choking the same victim into unconsciousness, whilst reckless as to that outcome (an offence that carries a maximum penalty of imprisonment for 10 years). Each of the offences had been committed on 12 March 2018.

5. The total sentence imposed was a head sentence of imprisonment for 4 years 5 months, with a total non-parole period of 2 years 10 months.

6. Because I am of the view that no ground put forward by the applicant can succeed, I propose that leave be refused; as a result, I shall be brief.

Procedural aspects

7. The following overview of procedural matters and objective and subjective findings is largely derived from the comprehensive remarks on sentence.

8. A trial was embarked upon before the learned sentencing judge and a jury in the District Court at Coffs Harbour. At its commencement, the applicant was arraigned on an indictment containing six counts, the details of which do not need to be recounted. The complainant, a young woman who had been in a romantic relationship with the applicant, and who was aged 17 years at the time of the offences, reached a point at which she had almost completed her evidence-in-chief. The applicant was re-arraigned, and pleaded not guilty to four of the counts, but guilty to the two counts that I have described above. Those pleas were accepted in full satisfaction of the indictment, and the jury was discharged.

Objective and subjective features

9. The offender was aged 45 years as at the date of the offences; the victim, as I have said, was not yet an adult. According to an agreed statement of facts signed by the applicant, they had been in a romantic relationship since late 2017, and were living together in his apartment in Coffs Harbour.

10. On the morning of Saturday, 10 March 2018, the victim was about to leave for work as a waitress at a nearby cafe. She and the applicant began an argument that continued throughout the whole of the rest of the weekend. The applicant found messages on her phone from another man, and eventually the victim informed him that she had had been in a sexual relationship with another person who was about her own age. The applicant became very upset and angry. Neighbours heard raised voices, but they were in large part the applicant shouting and the victim screaming.

11. On the morning of Monday 12 March, the victim rose from bed in order to go to work. The applicant remained angry about what had been revealed two days before. The victim walked towards the front door. The applicant pulled her back, threw her on the floor face first, and, to quote from the remarks on sentence “placed his hands around her throat and pulled her head back so she could not breathe. She feared she would die. He then rolled her onto her back and with his hands around her neck smashed her head into the carpet at least three or four times. He then squeezed his hands tightly around her neck until she lost consciousness” for an indeterminate time. Later, she returned to consciousness to find the applicant “touching her cheek and saying her name”.

12. As a result of being brutalised and choked into unconsciousness, the victim suffered a number of physical injuries, including a swollen throat that took four days to resolve, and petechial haemorrhages, a well-known indicator of strangulation.

13. Quite apart from the differences between the applicant and the victim in age and gender, there was a considerable difference in their physical strengths. At one stage of the assault she scratched his face, but the sentencing judge found that “one might have thought this was an act in futile self-defence”.

14. Turning to the objective features of the other count, during the course of the same Monday morning, but clearly not during the process of strangulation into unconsciousness, the applicant bit the victim on her bottom lip with sufficient force to cause bleeding, bit her shoulder with sufficient force to cause bruising, and hit her head into the carpeted floor with sufficient force to cause swelling. Those acts together constituted the single offence of assault occasioning actual bodily harm.

15. Separately, the applicant received short, wholly concurrent sentences for three offences contained on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). They were: cultivating five cannabis plants, possessing a small amount of cannabis, and failing to comply with his child protection reporting obligations (in that the applicant failed to inform police of his current residential address and failed to notify police of any vehicle he owned or used). As the diagram of the entire sentence structure attached to this judgment shows, those offences led to wholly concurrent sentences of not more than 6 months; in the circumstances, I shall not discuss them further.

16. Returning to the context of the offending, police became involved after the completion of the two offences of violence; the victim was assisted to leave the apartment; the applicant was interviewed; at that stage he denied the offences, and drew attention to his own minor injury.

17. As for objective gravity, the sentencing judge spoke of the undoubted risk that arises whenever one person strangles another into unconsciousness.

18. Turning now to subjective matters, the sentencing judge provided a discount for the utilitarian value of the two pleas of guilty of 10%.

19. As for aggravating and mitigating features, his Honour also spoke of the fact that the offences were committed in the home of the victim, albeit it was also the home of the applicant.

20. His Honour spoke of the unplanned nature of the offences as being a mitigating feature.

21. With regard to the assault occasioning actual bodily harm, on the one hand the sentencing judge noted that the injuries actually inflicted were not overly objectively serious; on the other hand, the offence continued over a reasonably extended period.

22. In all the circumstances, the sentencing judge did not find that the applicant was remorseful in the sense envisaged by statute.

23. As for criminal history, the applicant had committed offences to do with prohibited drugs, alcohol, and dishonesty since he was a boy in 1985.

24. In the early 1990s, he had committed offences of less serious violence that had resulted in fines.

25. In 1994 he was sentenced to perform community service for an offence of assault occasioning actual bodily harm.

26. In 1995 he was sentenced to one week in prison for a common assault. In 2001 he was placed on a bond for the same offence. In 2008, he received the same penalty for the same offence, and was ordered to obey the directions of a psychologist or psychiatrist, and to take prescribed medication.

27. In 2012, seemingly on the one occasion, he intimidated another person and contravened an apprehended violence order, and was placed on a suspended sentence and a bond respectively.

28. In 2013, he possessed a prohibited drug, cultivated a prohibited plant, and possessed ammunition without a license. For those offences he was fined and placed on a bond. However, for an offence of producing, disseminating or possessing child abuse material that occurred or was detected on the same date, he received a head sentence of imprisonment for 12 months with a non-parole period of six months.

29. Subsequently, he committed driving offences, and offences to do with prohibited drugs.

30. The approach of the sentencing judge was that that criminal history summarised above disentitled the applicant to any leniency. His Honour proceeded on the basis that the applicant was not subject to conditional liberty at the time of the offences under consideration.

31. More generally, his Honour spoke of the applicant having endured a life of “considerable deprivation and early exposure to violence”, and made the finding that the “course through life” of the applicant may have been something over which he did not have much control, bearing in mind his upbringing.

32. In a Community Corrections report placed before his Honour, the applicant was recorded as having spoken of his conduct as being “a brain snap” in the context of an inability to control his emotions, anxiety and depression, and a long history of abuse of prohibited drugs.

33. His Honour noted the concession of defence counsel then appearing that there was an issue about the risk of the applicant reoffending.

34. The sentencing judge also spoke in some detail about the undoubted psychological difficulties experienced by the applicant over many years; the fact that he had become inured to violence as a result of environments that had been imposed upon him; the fact that the same phenomenon occurred with regard to abuse of prohibited drugs and alcohol; the very limited education of the applicant, perhaps contributed to by him having suffered from attention deficit hyperactivity disorder (ADHD) as a child; the suggestion of a traumatic brain injury in childhood that may not have been properly identified, let alone treated; repeated incidents of self-harm; more than one drug overdose; problematic gambling; the use of prohibited drugs by the applicant in order to ease his psychological pain; and, as an overarching condition, a longstanding depressive illness on his part.

35. Entirely as one would expect, respectfully, in light of all of those findings, the sentencing judge spoke of the applicant requiring “a range of therapies” directed towards longstanding change, not least addressing his chronic substance abuse problem.

36. The sentencing judge referred explicitly to the concept of totality with regard to the sentences to be imposed for the two offences of violence.

Aspects of sentence structure

37. Ultimately, for the assault occasioning actual bodily harm, his Honour imposed a fixed term of 1 year 9 months (bearing in mind the discount of 10%, and rounding down to which his Honour referred, the undiscounted starting point was 2 years).

38. For the offence founded on choking into unconsciousness, a head sentence of imprisonment for 3 years 7 months was imposed (the starting point was 4 years).

39. As can be seen from the diagram of sentence structure, the second sentence commenced 10 months after the first.

40. His Honour found special circumstances that led to a significant variation away from the statutory ratio; as the diagram shows, with regard to the total non-parole period and total head sentence, it became just over 64%.

Grounds of appeal

41. In support of the application for leave to appeal against sentence, the following grounds were notified and pressed at the hearing before us by the applicant (the quotes are verbatim, but for convenience I have converted the case).

1. Head sentence to run concurrent with all counts etc, from 12/3/18 ….. with respect to Hon Judge Norrish QC

2. Regarding the AOABH, as stated, is unclear from facts when AOABH occurred? ….. also don’t agree as a bite on the shoulder + lip as “high level of violence” + count should be run fully concurrent with all counts. severe sentence? …..

Written and oral submissions

42. In written submissions filed on 1 November 2019, it was said (I have adopted the same approach):

“1. Head sentence to run concurrent with all counts

2. The AOABH is unclear + classed as “high level of violence” when there was only a small cut on the lip from a bite + small bite on the shoulder …. seems to be severe + unjust”

43. In other written submissions, the applicant spoke of having been “misguided” by his lawyer about remaining silent in the sense of not giving evidence, including during the proceedings on sentence.

44. He also spoke of the stress of having major surgery only five weeks before he entered the pleas of guilty, seemingly in an attempt to impugn those pleas.

45. He denied that there was in truth any intention to choke on his part, and claimed that he had pleaded guilty to avoid stress to the victim and himself.

46. He disputed that the victim ever lived with him, and asserted that she would simply stay over at his apartment during weekends and holidays.

47. He queried the absence of a victim impact statement from the 17-year-old young woman whom he had choked into unconsciousness, and referred to the situation as “questionable”.

48. The applicant also spoke of not being on “the right medication” at the time of the offences. He also asserted that it was only recently that he was diagnosed with post-traumatic stress disorder (PTSD).

49. The written submissions concluded with an expression of remorse, a recognition of the newly diagnosed PTSD, and some details of rehabilitation in custody already undertaken, and proposed to be undertaken in the future.

50. In brief oral submissions, the applicant reiterated: that he had been misguided; that his approach to the matter at the time of his pleas had been affected by recent medical complications; that he denied an intention to choke; that his concern remains about the absence of a victim impact statement; that the question of residence was an error; that he had come to recognise his PTSD; and that he is making ongoing efforts to get rehabilitative help in custody.

Discussion of proposed grounds

51. My approach to both grounds is as follows. For the purposes of determining the question of leave, I accept and replicate all of the favourable and mitigatory findings made by the sentencing judge. In particular, I accept that the life of the applicant has been damaged – if not permanently, then certainly chronically – by all that was imposed upon him when he was a child and a young man, and that the sentences imposed upon him needed to reflect that important fact.

52. I also accept that he pleaded guilty to the offences and, at the least, that approach not only had a value to the victim and the criminal justice system, but also constituted an acceptance of criminal responsibility on his part.

53. It is also true to say that his criminal record, whilst lengthy, did not feature offences of violence in the past of the greatest gravity.

54. Nevertheless, in my opinion it was certainly open to the sentencing judge to impose for the choking offence a sentence that was partly accumulated upon the sentence for the assault occasioning actual bodily harm. As I have said, although they occurred on the same day, they were entirely separate offences, and the former was, in my opinion, a very grave and dangerous offence. Any other outcome would have been unorthodox, and possibly even erroneous.

55. As for the degree of cumulation adopted, there can be no complaint, in all the objective and subjective circumstances of this case, about the applicant spending less than a year in custody solely referable to the assault occasioning actual bodily harm.

56. Ground 1, in my opinion, cannot succeed.

57. As for ground 2, it is quite clear that that offence occurred during the course of the Monday morning. Nor did the sentencing judge find that the actual bodily harm itself was “a high level of violence”. Nor (to return to the question of concurrence and cumulation, in accordance with the ground) was there any requirement that there be complete concurrence between these two separate offences of violence committed against a 17-year-old young woman by a mature man with a history of violence.

58. Turning briefly to the other specific complaints of the applicant: in light of the sound documentary evidence about mitigating features, the fact that the applicant did not give evidence on sentence has no weight; very often, in my opinion, not calling an offender on sentence is the correct tactical decision of defence counsel.

59. The suggestion of recent major surgery with complications, even if accepted, does not approach the point at which one might permit withdrawal of a plea. The same can be said of the subsequent denial of intentional choking.

60. The specific fact of the residence of the victim with the applicant is spoken of explicitly in the agreed statement of facts, signed by the applicant himself on 5 February 2019.

61. The absence of a victim impact statement is of no moment: the gravity and danger of choking another human being into unconsciousness, and at the same time causing physical injuries including petechial haemorrhaging, speaks for itself.

62. Finally, one may accept that there have been difficulties in finding the “right medication” for the applicant, that his expression of remorse is sincere (despite his seeming denials of the elements of the major offence in the same written submissions), and that he is making his best effort to rehabilitate himself in custody. But even taking those matters into account (for the sake of argument only) none of those factors – whether alone or in combination – argues for any interference with the sentences or the sentence structure on any basis. Indeed, an available view is that the approach of the sentencing judge to this offending was lenient, especially when one reflects upon the total non-parole period.

Proposed order

63. For those reasons I propose the following order:

1. Leave to appeal refused.

Leonard (11.3 KB, pdf)

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Decision last updated: 20 December 2019