Little v R

[2010] NSWCCA 210

New South Wales
Court of Criminal Appeal

CITATION:	LITTLE v REGINA [2010] NSWCCA 210
HEARING DATE(S):	Tuesday 31 August 2010
JUDGMENT DATE:	22 September 2010
JUDGMENT OF:	Macfarlan JA at 1; Simpson J at 2; Hall J at 4
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal – sentence- offence maliciously inflict grievous bodily harm with intent to murder – sentence judged erred in classifying case as worst case category – lacking premeditation – absence of weapon – appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Regina v Penisini [2004] NSWCCA 339 Regina v Twala (NSWCCA, unreported, 4 November 1994) Regina v Westerman [2004] NSWCCA 161
PARTIES:	Carl Edward LITTLE v REGINA
FILE NUMBER(S):	CCA 2008/2805
COUNSEL:	C: D Woodburne SC A: S J Odgers SC
SOLICITORS:	C: S Kavanagh A: Ender Nedim
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	08/2805
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	5 September 2009

2008/2805

MACFARLAN JA
SIMPSON J
HALL J

WEDNESDAY 22 SEPTEMBER 2010

CARL EDWARD LITTLE v REGINA

Judgment

1 MACFARLAN JA: I agree with Hall J.

2 SIMPSON J: I have read in draft the judgment of Hall J and agree with his Honour’s conclusions, and his reasons therefor.

3 I wish only to add that the submission that there was no, or insufficient, evidence to support the conclusion concerning Mr Smith’s long term prognosis prior to the intervening cardiac event was entirely without foundation. The evidence to that effect was as clear as it could possibly have been. To suggest otherwise is more than speculative; it is fanciful. In my opinion, this basis of the appeal ought to never to have been argued.

4 HALL J: The applicant, by notice dated 23 April 2010, seeks leave to appeal from a sentence imposed by the District Court at Parramatta on 5 August 2009 following pleas of guilty to four offences committed on 11 December 2006 whilst an inmate at the minimum security section of Silverwater Correctional Centre. As noted in the Crown’s written submissions, each offence involved unprovoked assaults on prison officers in the course of their duty.

5 The particulars of the offences in question are as follows:-

Count 1: Cause grievous bodily harm with intent to murder: s.27, Crimes Act 1900: maximum penalty: 25 years’ imprisonment; standard non-parole period, 10 years.
Count 2: Maliciously inflict grievous bodily harm with intent to do grievous bodily harm: s.33, Crimes Act 1900: maximum : 25 years’ imprisonment.
Counts 3-5: Assault prison officer in execution of duty: s.58, Crimes Act 1900: maximum penalty: 5 years’ imprisonment.

6 For mid-range offences under s.27 of the Crimes Act, the standard non-parole period is 10 years.

7 In respect of Count 1, the applicant pleaded guilty to causing grievous bodily harm to Wayne Smith with intent to murder.

8 In respect of Counts 3, 4 and 5, the applicant pleaded guilty to the assault of three prison officers being respectively Rashmi Goel, Graham Conn and Dean Edwards.

9 The applicant pleaded guilty on the first date set for the trial. After the matter was stood over for sentence, the applicant applied to change his plea. He subsequently withdrew his application to vacate his plea and his pleas of guilty were confirmed on 28 May 2009.

Facts

10 The facts were set out in a statement which became Exhibit A2 on the sentence proceedings. There was no dispute about the facts recorded in the exhibit, the material parts of which are set out below.

“About 9.30 am on Monday 11 December 2006 at Silverwater Correctional Centre, the victim in this matter, Corrective Officer Wayne SMITH was escorting the accused, inmate, Carl Edward LITTLE to block ‘C’ from Block ‘A’. Victim 2, Corrective Officer Rashmi GOEL has gone to assist SMITH as she was asked over radio to escort the accused after he had been re-classified and was being transferred to another gaol.
The victim, Correctional Officer Wayne SMITH was on the classification panel and was involve din the upgrade of the accused classification from minimum to medium security only minutes before he has done to convey the accused to ‘C’ block.
However due to SMITH already escorting the accused, through ‘A’ block towards the rear entrance door which leads to Blocks ‘B’ and ‘C’ GOEL has followed behind SMITH and the accused a short distance.
As SMITH and the accused have walked outside the rear entrance door of block ‘A’ the accused has turned to his left and faced SMITH who was standing next to him. The accused has spat at the victim, SMITH’s face which was about one centimetre away from him.
The victim SMITH did not say or do anything and it was at this time victim, GOEL has called for urgent assistance via her radio. While she was calling for assistance the accused has started punching SMITH with both clenched fists. The accused has continually punched the victim, SMITH to the face until the victim has fallen to the ground.
The victim, SMITH has remained on the ground in the foetal position unconscious and bleeding to the nose and face. Whilst SMITH was on the ground the accused has turned and walked towards GOEL in a threatening manner with both his hands clenched up and in a punching motion.
The accused has walked up to GOEL and stood about half a metre away from her causing her to fear for her safety. The accused has then turned around and walked back towards SMITH who was still lying unconscious and bleeding on the ground. LITTLE has stamped his right leg down on the left side of SMITHs cheek and jaw area. SMITH said and did nothing as he was still unconscious.
The accused continually kicked SMITH to the face and chest area a number of times. He did this for a while and did not stop. More blood has started exiting the victim, SMITH’s nose, mouth, face and head. The victim SMITH was still unconscious.
As the accused was kicking SMITH, GOEL was continually calling for assistance. Acting SuperIntendant [sic] Graeme CONN has attempted to assist SMITH however as he opened the rear entrance door from inside block ‘A’ the accused has walked over to GOEL and pushed her left shoulder with his right hand and slammed the door to ‘A’ block which CONN was trying to open to assist Officer’s [sic] SMITH and GOEL.
Once the door was shut the accused walked back over to Officer SMITH, who was unconscious on the ground and bleeding profusely from the face and head and continued to kick SMITH to the face, head and chest area.
The accused was seen to mutter words towards SMITH as he was kicking him. The accused with his right foot has again stomped on SMITH’S head. The accused did this a number of times before other Corrective Officers have arrived and assisted both victims’ [sic] GOEL and SMITH.
The accused was restrained by Officer CONN and other officers in attendance. While they were pulling the accused away, the accused has kicked the victim, Wayne SMITH a further two times to the head. The accused was retrained and instructed to leave the area by Superintendent CONN and proceed to ‘C’ block holding cell.
Whilst walking to the other cell block the accused has said to Corrective Officer CONN, ‘Fuck off or I will smash you to [sic] ’. The accused walked down the steps and walked towards ‘C’ block and the Basketball court. CONN followed the accused and instructed him a number of times to go to ‘C’ block holding cells. The accused has then pushed Superintendent CONN away with his extended right arm. The accused said to CONN, ‘Fuck off! Or I will smash you’. Correctional Officer LALOA has come to assist Superintendent CONN with LITTLE. They have both tried to get LITTLE to proceed to ‘C’ block holding cell using verbal commands.
The accused walked onto the basketball court next to ‘C’ block. LITTLE has turned towards SuperIntendant [sic] CONN and grabbed him with one hand by the scruff of his shirt. LITTLE pulled Superintendant [sic] CONN towards him with one hand and wiped the other hand, which was covered in blood onto CONN’s short. The accused then changed hands and wiped the other hand which also had blood on it, on the front of Superintendant [sic] CONN’s shirt.
The accused appeared to have sustained a small laceration to his left hand knuckle area which is believed to have bleed [sic].
After wiping his hands on the shirt of Superintendant [sic] CONN, the accused has walked over towards the Oval which was at the other end of the basketball court. The accused attempted to make a phone call from the phone box in the oval without success.
The accused hung up the phone and walked back towards the basketball courts where other inmates were. Correctional Officer Dean EDWARDS attended the basketball court and said, ‘Where is LITTLE? I want to see inmate LITTLE now’. The accused has walked straight towards Officer EDWARDS, from a crowd of inmates. The accused stopped about ten centimetres away from Officer EDWARDS [sic] face. The accused said, ‘You are looking for me’. Officer EDWARDS said, ‘Are you inmate LITTLE?’ The accused said, ‘You’re fucking looking for me you big mouth?’
Officer EDWARDS said, ‘What have you done LITTLE?’ The accused said, ‘You fucking know what I have done, come on bring it on’. The accused has raised his right hand which was in a closed fist and attempted to punch Officer EDWARDS, however he has missed and both the accused and Officer EDWARDS have fallen backwards onto the fence. Other officers have come and assisted Officer EDWARDS.
As the accused was being restrained, other inmates have assaulted other Correctional Officers who had attended the basketball court to assist Officer EDWARDS and CONN and to also move all inmates back to their cells. The inmates continued to yell abuse at the officers before the accused and all other inmates were removed from the basketball court and oval and placed in their cells. The accused was taken to the holding cell within ‘A’ block.
As a result of the assault, SMITH was conveyed to Westmead Hospital in a critical condition where he underwent emergency surgery. As a result his jaw had to be rewired as it was severely fractured and he had received numerous stiches to at least seven lacerations on his face and scalp. He also suffered bleeding to the brain.
The victim SMITH remained in ICU, where he underwent further surgery to have his face reconstructed. A number of plates and wires were placed in his face to help repair the damage received from the assault on him by the accused, as the bones from his eye sockets down to his jaw had been shattered.
Officer GOEL did not receive any injuries as a result of being pushed by the accused, nor did Officers CONN or EDWARDS.”

11 In his remarks on sentence, the sentencing judge observed:-

“As a result of the attack upon him Mr Smith suffered grossly misplaced facial features with widespread bruising and swelling of his head, face and neck. There was a penetrative puncture wound to his central forehead and an extensive full thickness laceration to his right, and posterior, skull. His face and eye areas had lost all their normal anatomical features due to the gross bruising and swelling. Mr Smith was treated for severe displaced comminuted fractures to his face, extensive oedema of the neck with a truncular deviation and a subdural haematoma in the frontal lobe of the brain resulting in a brain injury. Mr Smith had uncontrolled nasal and oral haemorrhage.
Mr Smith remained in Westmead Hospital and underwent a second operation on 14 December 2006 for placement of a tracheostomy to secure his airway and also for a further debridgement of all his facial wounds and a change of nasal packs as at that time he had not regained any type of consciousness due to his brain injury. Subsequently Mr Smith underwent a further major operation to repair his severely comminuted and displaced mis-face fractures. This included his bilateral orbits, bilateral zygomatic arches and extensive comminuted nasal complex frontal bone and comminuted maxilla.
A number of teeth that had been fractured and split were removed at this time. At this surgery the majority of his facial bones were restored to their correct positions, however, because of his injuries Mr Smith required further procedures to restore his orbital skeleton and nasal complex which had been extensively damaged. Thereafter Mr Smith received extensive therapy and care but had a very poor and slow neurological recovery despite intensive medical and surgical treatment. He was eventually stepped down from the intensive care unit to the neurotrauma unit. At this time he had poor responses to verbal commands and was semiconscious most of the time. He suffered a large oral and facial haemorrhage due to wound breakdown from a large artery which resulted in emergency treatment in the neurotrauma unit and which led to a deterioration in his condition. He had a slow recovery from that incident and although his facial features were starting to return to normal there was no change in his neurological status.”

Sentences imposed

12 The following sentences were imposed on the applicant on 11 December 2006:-

Count 1: s.27 offence
(1) A non-parole period of 15 years and 3 months to commence on 25 October 2007 and to expire on 24 January 2023.
(2) A parole period of 5 years and 3 months to expire on 24 April 2008.
Counts 2, 4 and 5: s.58 offences
In respect of each of the assaults on prison officers, Ms Goel and Messrs Conn and Edwards, a fixed term of imprisonment of 6 months to commence on 25 October 2007 and to expire on 24 April 2008.

13 Accordingly, the sentences in respect of the three s.58 offences were concurrent with one another and concurrent with the sentence in respect of the offence of cause grievous bodily harm with intent to murder.

Ground of Appeal

14 There is only one ground of appeal, namely, that the sentencing judge erred in determining that the offence was in the worst case category.

Submissions for the applicant

15 Mr S J Odgers, senior counsel for the applicant, relied upon his written submissions which were supplemented by his oral submissions.

16 The case for the applicant has essentially been argued upon the basis of three matters, namely:-

(1) The lack of premeditation.

(2) The absence of a weapon.

(3) The claimed absence of evidence concerning Mr Smith’s medium and long-term prognosis at the time of his fatal cardiac arrest.

17 In oral submissions, Mr Odgers accepted, quite properly, that on its own, the fact that the offence was found to be unpremeditated would not be a sufficient basis for taking it out of the worst case category but, nonetheless, he submitted it was “an important factor”.

18 As to the fact that no weapon was used, again, Mr Odgers accepted that every case has to be assessed on its merits and the fact that the physical injuries inflicted to Mr Smith’s head were largely caused by the applicant using his feet to assault the victim, did not of itself take the matter out of the worst category.

19 It was in relation to the third matter set out above in paragraph [15], Mr Odgers submitted that that matter was “more problematic”.

20 In the course of his oral submissions in relation to this lastmentioned matter, Mr Odgers referred to the sentencing judge’s statements that it seemed likely that Mr Smith’s long-term prognosis, given the severe brain trauma, was “bleak” and to the further statement by the sentencing judge “… so it is likely that there would have been a very significant adverse long-term impact upon Mr Smith”. Mr Odgers submitted that there was no evidence to support these statements by the sentencing judge and that no finding, beyond reasonable doubt, could be, or indeed was made, by the sentencing judge.

21 In respect of the last-mentioned matter, the submission for the applicant was in the following terms:-

“10. As regards the last matter, it is submitted that the sentencing judge was wrong to sentence the applicant on the basis that Officer Smith’s ‘long-term prognosis given the severe brain trauma was bleak’ and ‘there would have been a very significant adverse long-term impact upon Mr Smith’ (RS 12.6). There was no substantive evidence regarding the long-term prognosis of Mr Smith. Counsel for the applicant conceded that there would have been ‘long term’ consequences from the assault but did not concede that the long term prognosis was bleak or that there would be a very significant long-term impact. It was contended that the applicant should be sentenced on the basis that other cases involved ‘far more serious outcomes’ (T 17.10 on 31.7.09). There was no proper basis to make the finding made by the sentencing judge and, in any event, a finding based on what was ‘likely’ was in error ( Olbrich v R (1999) 199 CLR 270).”

Crown’s submissions

22 The Crown submitted that the question raised by the above ground of appeal was whether or not the particular categorisation made by the sentencing judge was open to him.

23 Relying upon observations in Regina v Penisini [2004] NSWCCA 339 at [18], the Crown contended that, just as premeditation or planning is not a necessary component for a case to be placed in the worst category of the offence of murder, so the absence of premeditation in relation to an offence of causing grievous bodily harm with intent to murder does not preclude such a finding.

24 The Crown referred to the multiple blows and kicks inflicted by the applicant and the other events to which I have referred above. The Crown contended that the injuries suffered by Mr Smith “… were as a result of merciless and sustained brutality” and, accordingly, the fact that the offence was without premeditation was counterbalanced or diminished by the persistent and determined effort made by the applicant to achieve his object, namely, the death of Mr Smith.

25 The Crown also contended that the absence of a weapon in the circumstances of the present case did not alone, or in combination with other matters, preclude a finding that the matter fell within the worst case category. Again, the Crown relied upon a number of matters associated with what it described as the “ferocity of the attack”, referring to aspects of the statements of witnesses to the events. The absence of the use of a weapon, accordingly it was contended, did not lessen the objective seriousness of the matter.

26 In relation to the evidence and the statements made by the sentencing judge as to the long-term impact on Mr Smith, the Crown pointed to the evidence including the medical evidence. In particular, reference was made to the report of Dr Richard Vickers dated 10 May 2007.

27 The Crown observed that no issue was taken with the finding made by the sentencing judge, inter alia, that Mr Smith had continued to suffer from physical injuries and that his neurological condition had remained unchanged as at the date of his death. The evidence of Dr Vickers pointed to the fact that Mr Smith had remained semi-conscious most of the time with poor responses to verbal commands. The Crown contended that it was open to the sentencing judge on the basis of such evidence to find that there would have been very significant adverse long-term impacts upon Mr Smith given, particularly, given that he had been assessed for long term rehabilitation.

28 Finally, the Crown emphasised that both the physical consequences of the assault as well as the emotional and psychological consequences, had Mr Smith survived, would also have been substantial.

29 The Crown, referring to the observations in Regina v Westerman [2004] NSWCCA 161 at [17] emphasised that it was not necessary for injuries to a victim to be of the “worst type” in order for an offence to fall into the “worst case” category.

30 In oral submissions, the Crown submitted that, in the event that this Court determined that the case was not in the worst category, it would have regard to its power in s.7(1A) of the Criminal Appeal Act 1912 which allows the Court, when re-sentencing on one matter, to vary the sentence on any other matter at the same time that forms part of the indictment. In this respect, it was noted that the applicant was sentenced at the same time for three offences of assault prison officer. As earlier noted, the sentences given in respect of the other offences were made concurrent with the principal offence for which he was sentenced. The Crown submitted that, in the event of this Court re-sentencing applicant, then there should be at least partial accumulation of the sentences on the principal offence.

Consideration

(1) Determining whether a case is in the worst category for the offence

31 The determination of a case as being in the worst category depends upon an evaluation of the particular features of the offence as established in evidence. These include those concerned with the objective gravity of the offence including any aggravating feature permitted as a matter of law to be taken into account. In cases of violence, the effects of the offence upon the victim or victims in terms of physical injury and consequent impairment and disability and emotional and psychological consequences are to be considered.

32 The assessment or evaluation of such matters in any particular case is undertaken in the knowledge that there are no specific criteria to determine a “worst category” of case.

33 In Regina v Twala (NSWCCA, unreported, 4 November 1994), it was stated that:-

“In order to characterise any case as being in the worst category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).”

34 In relation to the impact or effect on a victim of a violent assault, a sentencing judge may find “a worst case” without being able to categorise the injuries involved in an offence as “worst type” injuries: Westerman (supra) at [17].

35 An assessment of a case being in a worse category of offence will not, of course, be regarded as erroneous merely because there could be even worse cases than the subject case. In this respect, Mr Odgers, with respect correctly, acknowledged that, as long as the case falls within generally speaking the worst case category, then no error is shown by pointing to even worse cases.

(2) Was this case a worst category of case under s.27, Crimes Act 1900?

36 By the applicant’s plea, it is clear that, in causing grievous bodily harm, meaning really serious bodily harm to Wayne Smith, the applicant did so with intent to murder him. No issue has been taken with what the applicant actually did to Mr Smith on 11 December 2006. I will set out certain observations below about his actions. It is sufficient here to observe that descriptions that have been given to them as “ferocious” and as amounting to, in the Crown’s submissions, “merciless and sustained brutality” were not suggested as overstatements. They are clearly accurate descriptions.

37 The essential gravity of the offence by any measure must be rated as high. Indeed, in the course of submissions to the sentencing judge, counsel for the applicant (who was not senior counsel appearing on the present application) stated:-

“I do concede it’s in the upper range but I don’t concede it’s a worst case category.”

38 The offence in question clearly being in “the upper range”, the issue is whether the particular matters relied upon in the submissions for the applicant referred to in paragraph [15] indicate that the offence in Count 1 is not in a worst case category. That is an issue to be assessed in the context of the matters established. In that respect, the following are noted:-

(1) The applicant’s actions were unprovoked. He acted in anger at having been upgraded from a minimum to medium security classification, Mr Smith having been on the classification panel and as such involved in the upgrade.

(2) The applicant’s attack upon the Mr Smith (and leaving aside his attacks upon the other officers) may be broken down into sequential stages as follows:-

(a) The applicant spat at Mr Smith’s face. Mr Smith did not say or do anything.
(b) While prison officer Goel was calling for assistance, the applicant started punching Mr Smith with both fists clenched. Based on witness statements, there was repeated punching until Mr Smith fell unconscious to the ground bleeding from the nose and face.
(c) There was a pause whilst the applicant walked up to Ms Goel. He then turned to Mr Smith who was lying unconscious and bleeding on the ground and stamped his right leg/foot down on the left side of Mr Smith’s cheek and jaw area.
(d) The accused then proceeded to kick Mr Smith in the face and chest area a number of times. Witness accounts in this respect varied from 10 to 15 times up to 30 to 40 times. Being unconscious, Mr Smith, of course, was defenceless in terms of shielding himself from the impact of the repeated attacks on him. At this stage, blood started existing from his nose, mouth, face and head.
(e) The applicant again walked over to Ms Goel and pushed her and slammed the door to A block which Mr Conn was trying to open to render assistance. He then walked back to Mr Smith, unconscious on the ground, and continued to kick Mr Smith to the face, head and chest areas.
(f) During this segment, the applicant stomped on Mr Smith’s head a number of times before assistance arrived.
(g) Whilst being pulled away by Mr Conn and other officers, the applicant kicked Mr Smith a further two times to the head.

39 In relation to this series of events, the following matters are noted in relation to the objective gravity of the Count 1 offence:-

(1) The applicant was a much younger man than Mr Smith and he was well-built and had considerable strength. Mr Smith, as well as being an older man, was of smaller build.

(2) At some point between leaving the room in Block A and the applicant spitting at Mr Smith or very soon thereafter, the applicant formed the intent to kill Mr Smith pursuing with considerable determination a series of brutal acts consistent with that intent to kill him.

(3) The most serious series of assaults were those specifically directed and delivered to Mr Smith’s head region involving repeated punching to his face followed by a considerable number of ferocious kicks to the head. Whilst these and other attacks were made, Mr Smith was in a completely vulnerable condition, being unable to move to avoid or take other action to fend off the full force of the blows and kicks delivered.

(4) Apart from his physical vulnerability, Mr Smith was additionally vulnerable by virtue of his position as a correctional officer (s.21A(2)(a), Crimes (Sentencing Procedure) Act 1999 and as well, by reason of the fact that he did not have any male assistance to assist or protect him.

(5) The motive for the applicant’s attacks upon Mr Smith was a matter involving his self interest (in having been reclassified) and for no other reason.

40 The applicant’s actions of stomping on the head of the then unconscious prison officer, which were both preceded and followed by repeated kicks to the head, with the applicant heard muttering words at the victim as he did so, demonstrated clearly enough a marked level of uncontrolled and brutal aggression by one human being to another. It was only by the intervention and actions of other officers to restrain the applicant that his onslaught on his victim stopped. There is every reason to accept that, but for that intervention, the applicant’s determined effort to kill Mr Smith would have been realised.

41 Whilst the sentencing judge stated that the offence was not premeditated, he immediately observed (remarks on sentence, p.12):-

“… While the intent to murder is the same intent in each and every breach of this particular provision, there can be various levels of determination to achieve the intended outcome. In the court’s view, the determination of this offender to achieve the intended outcome of causing the death of Mr Smith was at the high end.”

42 Mr Odgers, as I have earlier observed, properly acknowledged that the fact that the intent to kill in the present case was formed only a short time before the attack began, is not a factor that alone would take the case out of the worst category of offences under s.27. As the Statement of Facts, Exhibit A2, reveals, the initial assault by the act of punching Mr Smith in the face rendered Mr Smith unconscious on the ground. The applicant, rather than stopping at that point, decided to go further, not in any insignificant way, but by escalating the level of violence from that point. By that time, he had clearly decided to carry out the intent to kill Mr Smith. The determined ferocity of his actions from that point took his earlier assault or assaults to a completely new level of brutality.

43 The absence of the use of a weapon in some cases under s.27 may be an important factor in assessing the objective gravity of an offence under that provision. That, again, however is a matter to be assessed in the context of the case.

44 Given the number and nature of assaults on Mr Smith and the force of them, the absence of a weapon is hardly to be regarded as an offsetting factor in the evaluation of the level of criminality involved. When a person lies unconscious on the ground, the delivery of blows to the head by stomping and kicking involves, in my opinion, acts that carry at least as much lethal potential as the use of a weapon.

45 Understandably no attempt has been made in this case to demonstrate that hitting a man over the head with a weapon with an object used as a weapon is more serious than the serious of kicks to the head of Mr Smith in his unconscious state. The fact that any such suggestion would be futile underscores the fact that the absence of a weapon in this case is of no significance on the question of “worst case category”.

46 As noted above, the contention for the applicant was that there was no “substantive evidence” regarding Mr Smith’s long-term prognosis. That being so, it was argued there was error on the part of the sentencing judge in sentencing the applicant on the basis of his statements that “Mr Smith’s long-term prognosis, given the severe brain trauma, was bleak” and “there would have been a very significant adverse long-term impact upon Mr Smith”.

47 The evidence on Mr Smith’s post-injury condition established the following:-

(1) The applicant’s actions in stomping on Mr Smith’s head and kicking his head, not surprisingly, caused extensive head injury.

(2) Emergency CT of Mr Smith’s brain, face and neck demonstrated severe displacement comminuted fractures of his face, extensive oedema of the neck with tracheal deviation and subdural haematoma in the frontal lobe of the brain.

(3) Examination at the hospital revealed, inter alia, that the victim suffered penetrating puncture wounds to the central forehead and extensive full thickness lacerations to his right and posterior scalp.

(4) Mr Smith was transferred to the Intensive Care Unit of the hospital due to both his brain injury and extensive facial injuries.

(5) The severity of the head injuries sustained was evidenced by severely comminuted and displaced mid-face fractures, including factures to his bilateral orbits, bilateral zygomatic arches, extensive comminuted nasal complex, frontal bone and comminuted fracture maxilla.

(6) Additional injuries included avulsion to a number of teeth which were fractured and split.

(7) Whilst in the Intensive Care Unit, the victim was in receipt of intensive therapy and care. Notwithstanding the intensive medical treatment administered to Mr Smith, he had very poor and slow neurological recovery.

(8) Mr Smith was subsequently transferred from the Intensive Care Unit to the Neurotrauma Unit. There he made slow recovery with poor responses to verbal commands and was semiconscious most of the time.

(9) Mr Smith subsequently suffered a large oral and facial haemorrhage due to would break-down from a large artery resulting in emergency treatment in the Neurotrauma Unit and further deterioration in his condition. Thereafter, he made slow recovery with facial features starting to return to normal. However, there again was no change in his neurological status.

(10) The Brain Injury Unit of the hospital assessed the victim for long-term rehabilitation. However, Mr Smith suffered a cardiac episode on 23 January 2007 and his life support was removed on 25 January 2007.

(11) The extensive injuries sustained by the victim, according to Dr Richard Vickers, were those normally seen in high speed impact motor vehicle accidents.

48 The evidence, including, in particular, the medical evidence, establishes that between the date of the attack, 11 December 2006, and 25 January 2007, the victim suffered from substantial brain injury which reduced his neurological status to a very low level whereby he had poor responses to verbal commands and was semiconscious most of the time. The fact that he had been assessed for long term rehabilitation is consistent with an extreme level of brain injury. The medical evidence does not support the proposition or indicate that it was likely, or even possible, that the victim would regain anything approaching normal neurological status.

49 The observation made by the sentencing judge that the long-term prognosis, given the severe brain trauma, was “bleak” was well supported by the medical evidence, which supported the proposition that the prognosis for Mr Smith was extremely poor.

50 Insofar as the ordinary dictionary meaning of the term “bleak” carries the meaning of “unpromising”, the statement of the sentencing judge, in my opinion, was, if anything, an understatement. It was, nonetheless, completely true as far as it went and was one well supported by the evidence.

51 Given the severity, nature and extent of the head injury causing significant brain damage together with the fact that there had been no improvement in Mr Smith’s neurological status whilst in the Intensive Care Unit and the Brain Injury Unit, the sentencing judge’s statement that the injuries would have a very significant “adverse long-term impact upon Mr Smith” was one well supported by the evidence. Mr Smith’s injuries, as Dr Vickers stated, were like those normally seen in high speed impact motor vehicle accidents, thereby emphasising the magnitude of the catastrophic effects of the injuries inflicted on Mr Smith.

52 The evidence, in my opinion, enabled the sentencing judge to form, to the requisite standard, the conclusions expressed by him as to the long-term impact of the brain injury. If inferences need to be drawn (I consider that there is an abundance of evidence to support the conclusion in any event), it was well open to the sentencing judge to infer that, given the nature, extent and severity of the injuries to the victim’s brain, in particular, in the frontal lobe area of the brain, that there would be both significant adverse and long-term impacts upon him in terms of his neurological functioning.

53 I do not consider that the sentencing judge erred in taking such matters into account in characterising the case as in “the worst case category”.

54 I accordingly, do not consider that the ground of appeal in question has been established.

55 I would propose the following orders:-

(1) Leave to appeal granted.

(2) Appeal dismissed.

**********