Longworth v R

[2017] NSWCCA 119

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Longworth v R [2017] NSWCCA 119

Hearing dates:

7 March 2017

Date of orders:

02 June 2017

Decision date:

02 June 2017

Before:

Macfarlan JA at [1];
Harrison J at [54];
Schmidt J at [55]

Decision:

Application for leave to appeal dismissed.

Catchwords:

CRIMINAL LAW – sentencing – recklessly causing grievous bodily harm – aggravating and mitigating factors – victim a security guard who had refused the applicant entry to a licenced premises – whether the victim was ‘vulnerable’ for the purposes of section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – consideration of vulnerability arising by reason of a person’s occupation – consideration of sections 73, 74 and 77 of the Liquor Act 2007 (NSW) – victim was vulnerable in the relevant sense

 

CRIMINAL LAW – appeal against sentence – leave to appeal – delay resulting from need for committal proceedings – applicant convicted after trial by jury – applicant had made an early offer to plead guilty to the only offence of which he was convicted – whether sentencing judge erred in failing to take delay into account

  CRIMINAL LAW – appeal against sentence – leave to appeal – recklessly causing grievous bodily harm – whether sentencing judge failed to take into account applicant’s mental condition – whether sentence manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 21A(2)(n)
Liquor Act 2007 (NSW), ss 73, 74, 77

Cases Cited:

Aloniu v R [2017] NSWCCA 74
Arnold v R [2011] NSWCCA 150
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Blackwell v R [2012] NSWCCA 227
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Campbell-Stephen v Regina [2010] NSWCCA 204
Daniels v R [2016] NSWCCA 35
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dosen v R [2010] NSWCCA 283
Fahda v R [1999] NSWCCA 267
Hona v R [2016] NSWCCA 119
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Dungay [2012] NSWCCA 197
R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
Reberger v R [2011] NSWCCA 132
Sabra v R [2015] NSWCCA 38
Stokes v The Queen (2008) 185 A Crim R 74; [2008] NSWCCA 123
Wong v The Queen (2001) 207 CLR 589; [2001] HCA 64

Category:

Principal judgment

Parties:

James Ian Longworth (Applicant)
Regina (Respondent)

Representation:

Counsel:
H Dhanji SC (Applicant)
N Adams (Respondent)

  Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2013/271287

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 February 2016

Before:

Cogswell DCJ

File Number(s):

2013/271287

Judgment

1. MACFARLAN JA: In October 2015 Mr James Longworth (the applicant) was tried in the District Court before a judge and jury on a charge of causing grievous bodily harm to Mr Fady (Fred) Taiba on 6 September 2013 with intent to cause that harm (s 33(1)(b) of the Crimes Act 1900 (NSW)) and, in the alternative, on a charge that he caused that grievous bodily harm recklessly (s 35(2) of the Crimes Act). The applicant was acquitted of the primary charge, to which he had pleaded not guilty, and convicted of the alternative charge, to which he had earlier offered to plead guilty.

2. On 18 February 2016 Cogswell DCJ, who had presided at the trial, sentenced the applicant to a term of imprisonment of 4 years and 10 months commencing on 14 February 2016, with a non-parole period of 3 years commencing on that date.

3. The applicant seeks leave to appeal to this Court on the following grounds:

1. The sentencing judge erred in finding that the offence was aggravated on the basis that the victim was vulnerable.

2. The sentencing judge erred in failing to have regard to delay as a mitigating factor.

3. The sentencing judge failed to have proper regard to the applicant’s mental condition.

4. The sentence is manifestly excessive.

The factual circumstances

4. Following receipt of the distressing news that the ashes of his recently deceased father had been misplaced, the applicant met friends at a bar in central Sydney, watched a football match on television and drank a considerable amount of beer. The group then went to the bar where Mr Taiba worked as a security guard. The sentencing judge stated that although the applicant was “very intoxicated” at that stage, he was “a quiet drunk” showing no signs of aggression.

5. His Honour described what then occurred:

“Fred Taiba indicated that James Longworth was not sober enough to enter the bar. Obviously he was responsibly discharging his duties, not only to his employer but to members of the public who would attend the bar. There were discussions amongst the young men and Fred Taiba. That is apparent from the CCTV which I have viewed again. James Longworth made one or two attempts, it seems, to talk Fred Taiba out of his decision but Fred Taiba maintained his position and refused him entry. The men then stepped a few metres away outside the entrance to the bar. They were apparently talking among themselves deciding what to do next. Some of them started heading off.

James Longworth was standing there. He looked at Fred Taiba and then … he launched a heavy blow to Fred Taiba’s head. At the time Fred Taiba was not facing James Longworth. He was turned away from him because he was talking to other patrons. James Longworth caught Fred Taiba completely by surprise. At least one witness said, ‘He fell like a tree’. He hit his head on the hard surface and was very seriously injured. James Longworth tried to run away but others caught up with him. He was arrested and charged and spent about three days in custody.”

THE SENTENCING JUDGMENT

6. After reviewing the evidence relating to Mr Taiba’s serious brain injury and the impact it had on his life, the sentencing judge concluded that the injury was “in the upper reaches of grievous bodily harm”.

7. His Honour then reviewed the evidence concerning Mr Longworth’s mental condition of depression and referred to the decision in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 which identifies the ways in which an offender’s mental health may have an impact upon sentencing. His Honour accepted that the news of the loss of his late father’s ashes exacerbated the applicant’s depression and grief, and that his depression was a contributing factor to the offence and thus was to be taken into account by way of mitigation.

8. His Honour then examined the evidence before him as to the applicant’s appreciation of the damage that a single punch to the head of an individual can cause. His Honour was not satisfied beyond reasonable doubt that the applicant “understood the potential of a ‘one punch’”.

9. His Honour then reached the following conclusions concerning the applicant’s punch:

“I do not accept that there was a degree of planning or calculation before James Longworth punched Fred Taiba. However, at the same time the punch was not immediate and instinctive. There were a few seconds between his rejection and his punching Mr Taiba. At the same time I accept what Mr Pickering [the Crown Prosecutor] says, that when he punched Mr Taiba, Mr Taiba was not watching, he was engaged with someone else. In other words, Mr Longworth’s punch hit Mr Taiba whilst he was distracted, so the act was not accompanied by planning or calculation but nor was it immediately spontaneous or instinctive.”

10. His Honour concluded that general deterrence was a very significant consideration in the present case, bearing in mind decisions such as R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 where this Court said at [216]:

“… the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence.”

The sentencing judge added:

“In many cases there are likely to be underlying psychological or psychiatric factors - depression is one - but the crime remains one of alcohol-fuelled violence. That offence in this case is one of the kind that attracts general deterrence. This is not a case, in my opinion, where Mr Longworth’s mental health condition makes such a contribution that there should be a very significant reduction in the weight I put on general deterrence.”

11. His Honour allowed a 25% discount to reflect the applicant’s early offer to plead guilty to the charge of which he was convicted, and took into account the applicant’s good character and remorse. His Honour found that the applicant was unlikely to reoffend and had very good prospects of rehabilitation.

12. His Honour made the following findings in respect of the aggravating factor of vulnerability:

“… there is an aggravating factor here that I must take into account. That is provided for in s 21A (2)(l) of the [Crimes (Sentencing Procedure) Act 1999 (NSW)]. Mr Taiba in carrying out his job was ‘vulnerable’. That provision gives examples that include ‘the victim’s occupation’. Although they do not specify a security guard, examples include a public transport worker, a bank teller or a service station attendant. Mr Pickering emphasised in his submissions [that] Mr Taiba was employed by his employer to protect members of the public. He was protecting patrons of the bar and anybody in the vicinity from the actions of people who may be intoxicated. He is by that very occupation in a vulnerable position. He was also doing a service to members of the public who wanted to enjoy their evening and their alcohol at quite a late stage of the night. That vulnerability is an aggravating factor in this case.”

13. His Honour found that the applicant’s moral culpability was reduced “somewhat” by his depression and that specific deterrence was not important in this case because of the unlikelihood that the applicant will re-offend. His Honour added:

“It is relevant to observe that a custodial sentence may weigh more heavily upon him. He will receive reduced attention from his personal GP and his psychologist but on the other hand he will receive treatment in the prison system if it is needed. He will receive appropriate attention. It may be that the attention he receives is not as great as he is receiving in the community. Mr Borenstein [the applicant’s psychiatrist] says as much but to my mind it is not a significant factor.”

14. In sentencing the applicant to the term of imprisonment referred to above, his Honour made a finding of special circumstances because “it would be harder for [the applicant] in custody because of the reduction in the treatment that he is receiving from Mr Borenstein. That has some impact, I accept. It will also be for him, the very first time in custody” (at [60]).

Ground 1: aggravation on the basis that the victim was vulnerable

15. As noted above (at [12]) the sentencing judge found that, because Mr Taiba was performing his job as a security guard at the time of the attack on him, he was a victim who was vulnerable in the sense in which that term is used in s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour therefore treated that factor as one which aggravated the applicant’s offence.

16. Section 21A(2) lists 22 aggravating factors. The parts of the section of potential relevance to the present case are as follows:

“(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(l)   the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant).”

17. The examples given in (l) are not exhaustive. They are concerned with classes of persons into which the victim may have fallen. That which is of present relevance is vulnerability of the victim arising as a result of his or her occupation. The examples of occupations in that category (“taxi driver, bus driver or other public transport worker, bank teller or service station attendant”) are occupations where the worker is often isolated from other people and sometimes in possession of significant amounts of money.

18. Whilst not one of the occupations specifically referred to in the section, Mr Taiba’s occupation as a security guard was also one where the worker is often isolated from others who may be able to come to his or her assistance. Or the security guard and his or her assistants may simply be outnumbered. In addition, where he or she acts as a security guard for a licensed hotel or club, the person is often liable to encounter and to have to control the conduct of individuals who are intoxicated and/or disorderly. The risk of such a security guard being subjected to aggression from such individuals is significant in light of the duties of the guard’s employer to eject intoxicated and disorderly persons from, and prevent the admission or re-admission to, the licensed hotel or club.

19. The following provisions of the Liquor Act 2007 (NSW) are of relevance:

“73 Prevention of excessive consumption of alcohol on licensed premises

(1)   A licensee must not permit:

(a)   intoxication, or

(b)   any indecent, violent or quarrelsome conduct,

on the licensed premises.

(2)   A licensee or an employee or agent of a licensee must not, on the licensed premises, sell or supply liquor to an intoxicated person.

(3)   A person (other than a licensee or an employee or agent of a licensee) must not, on licensed premises, supply liquor to an intoxicated person.

(4)   If an intoxicated person is on licensed premises, the licensee is taken to have permitted intoxication on the licensed premises unless the licensee proves:

(a)   that the licensee, and the licensee’s employees or agents, took the steps set out in subsection (5), or

(a1)   that the licensee, and the licensee’s employees or agents, took the steps set out in the guidelines under subsection (5A) to prevent intoxication on the licensed premises, or

(b)   that the intoxicated person did not consume alcohol on the licensed premises.

(5)   For the purposes of subsection (4) (a), the following are the relevant steps:

(a)   asked the intoxicated person to leave the premises,

(b)   contacted, or attempted to contact, a police officer for assistance in removing the person from the premises,

(c)   refused to serve the person any alcohol after becoming aware that the person was intoxicated.

(5A)   The Secretary is to issue guidelines relating to the prevention of intoxication on licensed premises. Such guidelines are to be made publicly available in such manner as the Secretary considers appropriate.

…

74 Sale of stolen goods and possession, use or sale of drugs on licensed premises

(1)   A licensee must not permit the licensed premises to be used for the sale of:

(a)   any goods that the licensee suspects of being stolen, or

(b)   any substance that the licensee suspects of being a prohibited plant or a prohibited drug.

(2)   A licensee must not permit the possession or use on the licensed premises of any substance that the licensee suspects of being a prohibited plant or a prohibited drug.

(3)   An employee or agent of a licensee or a person (other than the licensee) in charge of licensed premises must not permit the licensed premises to be used for the sale of:

(a)   any goods that the employee, agent or person suspects of being stolen, or

(b)   any substance that the employee, agent or person suspects of being a prohibited plant or a prohibited drug.

(4)   An employee or agent of a licensee or a person (other than the licensee) in charge of licensed premises must not permit the possession or use on the licensed premises of any substance that the employee, agent or person suspects of being a prohibited plant or a prohibited drug.

…

77 Non-voluntary exclusion of persons from licensed premises

(1)   In this section:

‘authorised person’ means a licensee, an employee or agent of a licensee or a police officer.

‘employee’ includes, in the case of a registered club, a person engaged under a contract for services.

‘vicinity’ of licensed premises means any place less than 50 metres from any point on the boundary of the premises.

(2)   An authorised person may refuse to admit to, or may turn out of, licensed premises any person:

(a)   who is at the time intoxicated, violent, quarrelsome or disorderly, or

(b)   whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or

(c) who smokes, within the meaning of the Smoke-free Environment Act 2000 , while on any part of the licensed premises that is a smoke-free area within the meaning of that Act, or

(d)   who uses, or has in his or her possession, while on the premises any substance that the authorised person suspects of being a prohibited plant or a prohibited drug, or

(e)   whom the authorised person, under the conditions of the licence or according to a term (of the kind referred to in section 134 or 136D) of a liquor accord, is authorised or required to refuse access to the licensed premises.

(3)   If, under subsection (2), a person has been refused admission to, or has been turned out of, licensed premises, an authorised person may, at any time, refuse to admit that person to the licensed premises or may turn the person out of the licensed premises.

… ”

20. As can be inferred to be the case in relation to Mr Taiba, security guards are often engaged by the licensee of licensed premises to assist in the performance of the licensee’s duties imposed by these sections. In my view this renders such security personnel “vulnerable” in the relevant sense. It is not to the point that security guards may often be physically strong persons, perhaps trained in self-defence. This is because security guards may well encounter persons in groups, in a highly intoxicated and aggressive state, or armed with articles such as beer glasses that can be used as weapons.

21. In the context of this ground of appeal, the applicant argued in the alternative that he was denied procedural fairness because he was not put on notice by the Crown or the sentencing judge that his offence might be treated as aggravated by a finding that Mr Taiba was, at the time of the offence, “vulnerable” for the purposes of s 21A(2)(l). I do not accept this submission.

22. In the course of his address on sentence, the Crown Prosecutor made the following submission:

“And when I take your Honour through some of the cases of the one punch matters that have littered Sydney in the last few years, your Honour will see that the courts have placed great emphasis in the assessment of the objective seriousness by looking at these features of the punch itself. This one being a person who was not watching, who was a stranger to Mr Longworth, in a position of employment to protect other people from entrance of people intoxicated and in a very vulnerable situation, in a situation that ultimately he was struck by Mr Longworth.”

23. The Crown thus clearly put to the Court, as a factor making the applicant’s offence more serious, that the nature of Mr Taiba’s employment rendered him vulnerable to violence. It would have been preferable for s 21A to have been mentioned, but the submission sufficiently drew the applicant’s attention to the point that his Honour subsequently took into account in sentencing the applicant, and about which complaint is now made.

24. The applicant relied in this context on Stokes v The Queen (2008) 185 A Crim R 74; [2008] NSWCCA 123 where the Court found that the offender had been denied procedural fairness because an aggravating factor taken into account on sentencing had not been relied on by the Crown. In that case the Crown did not submit to the sentencing judge that the offence was part of a planned or organised criminal activity attracting the aggravating factor referred to in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act. Indeed the Crown Prosecutor expressly stated to the judge that “there are no aggravating features I put before you” (at [10]). The decision is thus distinguishable from the present case.

23. Likewise in R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 this Court criticised a sentencing judge for making a finding of vulnerability in circumstances where, unlike the present case, neither party nor the sentencing judge raised the question of vulnerability in the course of addresses. As well, in Aloniu v R [2017] NSWCCA 74, where this Court made a finding of procedural unfairness, the Crown had not relied upon the aggravating factor in question in the course of its address (at [61]).

24. For these reasons, Ground 1 should be rejected.

Ground 2: whether the sentencing judge erred in failing to have regard to delay as a mitigating factor

27. The chronology of the proceedings was as follows.

28. The applicant committed the subject offence on 6 September 2013. He was arrested at the scene of the crime but released on bail on 9 September 2013. At the conclusion of committal proceedings in the Local Court on 18 December 2014, he was committed for trial in the District Court. His trial commenced on 6 October 2015, which was the first date upon which the matter was listed for hearing. The jury returned verdicts on 19 October 2015. Proceedings on sentence were conducted on 11 December 2015 and 28 and 29 January 2016. At the conclusion of the hearing on 29 January 2016, the sentencing judge indicated to the applicant that there was “a high likelihood” that he would be sentenced to full-time custody. The applicant was sentenced on 18 February 2016.

29. At the sentencing hearing, the applicant’s counsel submitted that the applicant “has had this hanging over his head for two years and four months and that’s something that would in the ordinary course impact upon somebody like Mr Longworth, particularly in the context of the depressive illness that he continues to suffer. Obviously he is recovering from that. It is a matter of common sense he is going to be severely hampered by the fact that he has ongoing court proceedings”. On the other hand, the Crown submitted that “a delay of two years is not one that should attract any attention” and that the delay “has allowed time for the offender to progress his rehabilitation”.

30. On this topic, the sentencing judge said:

“There was some reference to the delay in the case being heard between 2013 and 2015. That is not a factor to which I give any weight in favour of Mr Longworth. There was appropriately a committal proceeding and then the case came up for hearing and was heard when it was first listed.”

31. His Honour did however take into account, in the applicant’s favour, the applicant’s progression towards rehabilitation since the time of the offence. As noted earlier, his Honour found that the applicant had very good prospects of rehabilitation and that specific deterrence was not a significant factor in the applicant’s sentencing because he was most unlikely to re-offend.

32. In this Court, the applicant submitted that the sentencing judge should have taken the delay in his sentencing into account. He relied, inter alia, upon the following statement of Bellew J (with whom Meagher JA and Schmidt J agreed) in Sabra v R [2015] NSWCCA 38 at [45]:

“Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given to such delay in the sentencing process will obviously be greater. But that is not to say that an offender must be able to establish consequences of that kind before delay can become relevant at all. To so conclude would be contrary to the weight of previous authority in this Court.”

33. The applicant submitted that “it is not to the point that the time over which the proceedings took place was not unusual”, and noted that at an early stage he had offered to plead guilty to the only offence of which he was convicted and for which he was sentenced. It was submitted on his behalf that he “remained in a state of uncertainty as to his fate” and that the range of potential sentencing outcomes was broad.

34. In my view it was open to the sentencing judge not to take the delay in sentencing into account. As the applicant acknowledged, the timings involved were not unusual, bearing in mind the need for committal proceedings. Whilst the delay is regrettable, it is the inevitable consequence of an “overburdened criminal justice system” (see Fahda v R [1999] NSWCCA 267 at [19] per Simpson J).

35. This is not a case in which the sentencing judge overlooked a submission from the offender that the time taken in proceedings against him should be a factor in his favour on sentence. On the contrary, as noted above, his Honour acknowledged that submissions on this topic had been made but concluded that, in the circumstances of the case before him, he would not give any weight to the question of delay.

36. The weight to be given to a potentially relevant factor is a matter for the discretion of the sentencing judge (Bugmy vThe Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). As there is no suggestion that his Honour misunderstood the relevant principles, it is incumbent upon the applicant to show that his Honour’s exercise of discretion was wholly unreasonable. In my view, the applicant has not pointed to any circumstances indicating that that is so. Instead, factors indicating that his Honour’s approach was open to him include: the delay was not of extraordinary length; the delay was not unusual in the context of the New South Wales justice system; there was no evidence of an adverse impact of the delay upon the applicant beyond what might reasonably be expected; there were no periods of unexplained delay; there were no periods of delay attributable to fault on the part of the authorities; the applicant must have been advised soon after his arrest that he was likely to be sentenced to a substantial period of imprisonment and, finally, the applicant received some benefit from the delay in that the sentencing judge was able, by the time of sentence, to make confident findings as to the applicant’s rehabilitation and unlikelihood of offending.

37. In submissions on appeal, the applicant emphasised that he had offered an early plea of guilty to the charge upon which he was convicted and that the time occupied in having a committal hearing related to the charge upon which he was acquitted. The applicant did not however specifically rely upon this point in his oral or written submissions to the sentencing judge. In these circumstances there was no error in his Honour not expressly adverting to it. It can nonetheless be assumed that his Honour was aware of the point because he was aware of both the applicant’s early offer to plead guilty to the charge on which he was convicted, and that the committal proceedings resulted from his not guilty plea in relation to the charge on which he was ultimately acquitted.

38. For these reasons, Ground 2 should be rejected.

Ground 3: whether the sentencing judge erred in failing to have proper regard to the applicant’s mental condition

39. The applicant’s submissions in relation to this ground commenced by acknowledging the authority of Director of Public Prosecutions (Cth) v De La Rosa at [177] as establishing that an offender’s mental problems may be relevant to the sentencing process in the following fashion:

1. “Where the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence”.

2. “It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed”.

3. “It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced”.

4. “It may reduce or eliminate the significance of specific deterrence”.

5. “Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence”.

40. As I have noted (see [7] and [10] above), the sentencing judge found that the applicant’s depression was a contributing factor to his crime but ultimately concluded that it did not make “such a contribution that there should be a very significant reduction in the weight [his Honour] put on general deterrence”. Thus he found that general deterrence remained very significant. His Honour also found that the applicant’s culpability was only reduced “somewhat” by his depression ([13] above).

41. The applicant’s submissions did not advance any good reason for interfering with his Honour’s exercise of discretion on this topic. The applicant was not, for example, able to point to any misunderstanding by his Honour of the relevant principles or to demonstrate that the course his Honour took was wholly unreasonable. The highest that the applicant was able to put his submission was that it “seems that his Honour determined that offences involving alcohol fuelled violence call for an emphatic sentencing response … to the exclusion of matters personal to the offender including his depressive illness” and that “such an approach was erroneous” (emphasis added). However his Honour did not take such an approach. Instead his Honour allowed the applicant’s depression to have some impact on the sentencing process, but held that the need for general deterrence remained very significant in light of the disinhibiting effect of the applicant’s intoxication (see [10] above), and that the depression had only a limited impact on the applicant’s culpability ([13] above).

42. The applicant’s submissions do not contend that his Honour departed from the principles stated in De La Rosa in any other way. Accordingly, Ground 3 should be rejected.

Ground 4: whether sentence manifestly excessive

43. To establish this ground, the applicant needed to demonstrate that the sentence was “unreasonable or plainly unjust” (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]). Furthermore, as stated in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] quoting Wong v The Queen (2001) 207 CLR 589; [2001] HCA 64 at [58]:

“appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’”

44. Of major significance in the present case are the severe traumatic brain injuries suffered by Mr Taiba. These were grave and, as described by his Honour, in the “upper reaches of grievous bodily harm”. Dr Ahamed Veerabangsa, a specialist in rehabilitation medicine, described the brain injuries as “critical and life-threatening” and said in relation to Mr Taiba’s prognosis:

“As a result of the severe TBI Mr Taiba is likely to have long term sequelae both of a cognitive and emotional nature. He is fortunate as he was able to return to his pre injury work where he is known to them and is familiar with the work. It would be difficult for him if he had to learn new skills and find new work and adapt due to the cognitive impairments. Emotional difficulties have caused issues at home requiring counselling. Due to the severe nature of the TBI he is at risk of post traumatic seizures.”

45. In a subsequent report, Dr Veerabangsa stated that Mr Taiba had developed seizure episodes. In his Victim Impact Statement, Mr Taiba described how his “once normal life is now destroyed” and stated that he bears a scar for life from the top of his forehead around to the back of his head.

46. The applicant referred to a number of decisions of this Court, all dated prior to the date of the offence in this case, which were said to support his submission that his sentence is manifestly excessive. These cases were Reberger v R [2011] NSWCCA 132; Campbell-Stephen v Regina [2010] NSWCCA 204; Dosen v R [2010] NSWCCA 283; Arnold v R [2011] NSWCCA 150; R v Dungay [2012] NSWCCA 197.

47. Other, mainly more recent, cases point in the other direction. For example, in Blackwell v R [2012] NSWCCA 227 a sentence of 4 years and 4 months for the same offence as the present applicant’s was found not to be manifestly excessive. In that case, the victim lost the sight of one eye and suffered facial scarring after being hit by the offender, who was holding a glass in his hand. The offender had a limited criminal record, had good prospects of rehabilitation and demonstrated remorse. He was said to be a “highly regarded young man”. He received a 13% discount for his guilty plea as compared to the 25% given in the present case.

48. In Daniels v R [2016] NSWCCA 35 a sentence of 4 years 6 months for the same offence was found not to be manifestly excessive. The offender hit the victim with a single punch, causing injury to his jaw and teeth but no permanent functional impairment or disfigurement. The offender had a prior criminal record and mental health issues. He was remorseful but the sentencing judge was unable to find that he was unlikely to re-offend.

49. In Hona v R [2016] NSWCCA 119 a sentence of 6 years and 9 months, with a 4 year and 9 month non-parole period, was found not to be manifestly excessive. The offender hit the victim in the face (using his elbow), swung another blow at his head, and stomped forcefully on his chest. The victim suffered severe head injuries, with the prognosis of some level of permanent cognitive decline. The offence was committed whilst the offender was on conditional liberty. His prospects of rehabilitation were found to be reasonable if the offender addressed his drug and alcohol issues.

50. Neither these nor any other cases to which the Court’s attention has been directed indicate that the present sentence is outside the range of sentences which have been imposed in other cases. But even if they did, these sentences would not “mark the outer bounds of the permissible discretion” (Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41]; R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [22]).

51. The conclusion to be derived from the cases to which I have referred is reinforced by the applicant’s submission that sentencing statistics reveal that “[o]nly 15% of offenders received a sentence that was more than 4 years and 6 months”. This statement does not suggest that the present sentence is outside the range of sentences discernible from other cases.

52. Ultimately “what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence” (Hili at [60]). Taking all of those matters into account, including the maximum sentence of 10 years, I am of the view that the applicant has not established that his sentence is manifestly excessive.

Order

53. As none of the applicant’s proposed grounds of appeal would succeed on appeal, his application for leave to appeal should be dismissed.

54. HARRISON J: I agree with Macfarlan JA.

55. SCHMIDT J: I also agree with Macfarlan JA.

**********

Decision last updated: 02 June 2017