Mansour v R; Hughes v R

[2013] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Adam Mansour v R Shannon Hughes v R [2013] NSWCCA 35
Hearing dates:	6 December 2012
Decision date:	27 February 2013
Before:	Simpson J at [1]. McCallum J at [2]. Bellew J at [3].
Decision:	Leave to appeal refused.
Catchwords:	CRIMINAL LAW - recklessly cause grievous bodily harm - affray - unprovoked attack in nightclub leading to physical and psychological injury - sentences of 4 years and 18 days with a non-parole period of 2 years and 9 days, and 4 years and 6 months with a non-parole period of 2 years and 3 months - whether inconsistency between findings of the sentencing Judge and the sentences imposed - whether sentences manifestly excessive
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	AM v R [2012] NSWCCA 203 Apthorpe v R [2012] NSWCCA 100 Dinsdale v The Queen (2000) 202 CLR 321 Han v R [2009] NSWCCA 300 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Lobsey v R [2012] NSWCCA 239 Matzick v R [2007] NSWCCA 92 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v McCulloch [2009] NSWCCA 94; (2009) 194 A Crim R 39 R v Nikolovska [2010] NSWCCA 169 R V Westerman [2004] NSWCCA 161 R v Woods (CCA (NSW) 9 October 1990 unreported R v Wright [1998] VSCA 84 R v Zhang [2004] NSWCCA 358
Category:	Principal judgment
Parties:	Adam Mansour - Applicant Shannon Hughes - Applicant Crown - Respondent
Representation:	J Trevallion - Applicants R Herps - Crown Archbold Legal - Applicants S Kavanagh, Solicitor for Public Prosecutions - Respondent
File Number(s):	2009/233821 (Mansour) 2009/233630 (Hughes)
Publication restriction:	None
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2012-02-10 00:00:00 Before: Woodburne DCJ

Judgment

1. SIMPSON J: I agree with Bellew J.

1. McCALLUM J: I agree with Bellew J.

1. BELLEW J: The applicants Adam Mansour ("Mansour") and Shannon Hughes ("Hughes") were each indicted before Judge Woodburne SC in the District Court for an offence against s. 33(1) of the Crimes Act of causing grievous bodily harm with intent, as well as an offence of affray contrary to s. 93C(1). Each pleaded not guilty to those offences.

1. Following a judge alone trial, her Honour found each of the applicants not guilty of the offence against s. 33(1), but guilty of the statutory alternative, namely an offence of recklessly causing grievous bodily harm in company, contrary to s. 35(1). Her Honour also found each guilty of the offence of affray.

1. Prior to the commencement of the trial, Mansour had offered to plead to the statutory alternative of which he was ultimately found guilty. That offer was rejected by the Crown.

1. On 10 February 2012 her Honour imposed the following sentences:

MANSOUR

OFFENCE	MAXIMUM PENALTY	SENTENCE
Recklessly causing grievous bodily harm (Crimes Act s. 35(1))	Imprisonment for 14 yrs Standard non-parole period of 5 yrs.	Non-parole period of 2 yrs and 9 days, to date from 25 June 2011 and to expire on 3 July 2013, and a total term of 4 yrs and 18 days expiring on 12 July 2015. Additional matter on Form 1 (possession of prescribed restricted substance) taken into account.
Affray (Crimes Act s. 93C(1))	Imprisonment for 10 yrs.	Non-parole period of 1 year 6 months to date from 25 June 2011 and to expire on 24 December 2012 and a total term of 3 yrs expiring on 24 June 2014.

HUGHES

OFFENCE	MAXIMUM PENALTY	SENTENCE
Recklessly cause grievous bodily harm (Crimes Act s. 35(1))	Imprisonment for 14 yrs Standard non-parole period of 5 yrs.	Non-parole period of 2 yrs and 3 months to date from 20 July 2011 and expire on 19 October 2013 and a total term of 4 yrs and 6 months expiring on 19 January 2016.
Affray (Crimes Act s. 93C(1))	Imprisonment for 10 yrs	Non-parole period of 1 yr and 8 months to date from 20 July 2011 and expire on 19 March 2013 and a total term of 3 yrs 4 months expiring on 19 November 2014.

1. The three month difference in the sentences imposed is explained by the fact that Mansour received a 10% discount to reflect his offer to plead guilty to the alternative offence of which he was found guilty.

1. Each applicant seeks leave to appeal against the sentences. Neither applicant has appealed against his conviction and no issue was raised on the hearing of the appeal regarding parity.

THE FACTS

1. Her Honour set out the facts at some length in her judgment. Those facts were determined partly on the basis of CCTV footage tendered in evidence before her Honour and may be summarised as follows.

1. On Saturday 17 October 2009, James McGuinness ("the victim") spent the evening at home with a group of friends celebrating the birthday of his girlfriend. Later that night the group decided to go to a club in Kings Cross called "Candy's Apartments". The victim and his friends arrived there at about midnight.

1. Also at the club on that evening were Hughes, Mansour and a friend of theirs, Steven Elmir ("Elmir"). The victim was not previously known to any of these three persons.

1. At about 2.31 am, the victim was sitting at a table in the club when Elmir backed into him. Elmir turned around to the victim, and they exchanged words, with Elmir adopting an aggressive stance towards the victim. About one minute later, the victim got up from where he had been sitting. Elmir stepped away in the direction of the exit and beckoned the victim to follow him, in an apparent attempt to have the victim come outside to continue the argument. The victim declined, and sat back down.

1. At that point, Elmir walked over and spoke with Hughes, who was described by her Honour (along with Mansour) as a "powerfully built young man". There was no evidence before her Honour as to what was said between Elmir and Hughes at that time, but her Honour was satisfied that Elmir spoke with Hughes about the victim, and that he (Elmir) pointed out the victim with the intention of seeking and obtaining support, from Hughes, for a confrontation with the victim.

1. When Elmir spoke with Hughes, they were joined by Mansour. Elmir, followed by Mansour, walked back towards the victim, who was minding his own business sitting down at a table. Elmir tried to engage the victim, who remained seated. Mansour remained close to Elmir as Elmir was standing over the victim and behaving aggressively towards him.

1. Elmir's behaviour attracted the attention of a security guard, a Mr Wang ("Wang"), who came over towards Elmir. At that point, Mansour gave Wang a "thumbs up" signal and then repositioned himself so as to stand at the end of the table at which the victim was seated. Wang went to walk past them. Elmir continued to behave aggressively towards the victim, at which time Wang turned back and looked in their direction.

1. Wang moved closer to Elmir and was about to put his hand on him, when Elmir lunged forward into the victim and put his left hand on the area of the victim's right shoulder and neck. He then engaged in what appeared to be a punching action, or an elbow punch, with his right hand or arm. Mansour was in close proximity to Elmir when he struck the victim, and was looking at both of them. At this point the victim's girlfriend started to make her way over to assist him.

1. Wang attempted to hold Elmir and managed to get at least one of his arms (and possibly both of them) around his torso. The victim rose from his seat and tried to push Elmir away from him, at which stage Mansour and Hughes moved in. As the victim rose from his seat, Hughes held his shirt from behind. The victim threw a punch at Elmir, connecting with his right ear.

1. Mansour then moved towards the victim with his left arm raised, and bent at the elbow. As the victim was leaning back, Mansour wound up for a punch by bringing his right arm well back, with his left arm reaching over to the victim's left arm.

1. At this point, the victim was the subject of attack from three different directions. Elmir struck him with his right arm, Hughes pulled him back and down, swinging a left handed punch to him and bringing him to the ground, and Mansour delivered a powerful punch to the back of the victim's head.

1. After the victim had been felled by their combined force, and whilst lying helpless on the ground and offering no resistance, Mansour and Hughes continued to attack him. Mansour kicked the victim with his right foot. As Wang tried to restrain Mansour, Hughes continued the attack by stomping on the victim.

1. Another security officer, along with a Mr Bussell ("Bussell") who was a friend of the victim, tried to intervene. Hughes pushed Bussell back with some considerable force. Another security officer intervened and took hold of Hughes' left arm, at which stage Mansour moved in again. As one of the security officers again tried to take hold of Hughes, he leaned directly over the top of the victim and continued the assault by forcefully stomping on him.

1. One of the security officers again tried to take hold of Hughes, but Mansour grabbed the officer from behind and pulled him away. As Hughes was delivering a final kick to the victim who was lying on the ground, he was finally restrained, telling the security officer to "fuck off cunt".

1. As a consequence of the attack upon him, the victim was knocked unconscious and taken to hospital. He was diagnosed as having suffered a compound fracture of the mandible, associated fractures of his teeth and damage to his facial nerves. He was hospitalised, and underwent surgery. His teeth were wired and incisions were made to access the facial bones for the purposes of aligning bone fragments, following which plates were inserted to assist the bones to heal. He suffered bruises and abrasions to his head, neck and body, as well as a fracture of the left ring finger which required the insertion of metal screws.

1. As a result of the injury to his teeth, the victim was required to undergo four root canal procedures, and the insertion of four crowns. There was evidence that the victim suffered continuing pain in his jaw and teeth, which was managed by strong analgesic medication. Further evidence before her Honour established that the victim had also suffered psychological damage, brought about at least in part by his pain levels, and which had manifested itself in panic attacks when amongst large crowds. Unsurprisingly, her Honour found that the incident had been an extremely traumatic one for him.

1. Her Honour concluded that it was not possible to identify which blow caused the grievous bodily harm to the victim. However, she found that it was the combined force of Hughes and Mansour, acting together, which had caused the victim's injuries. She found that as a result of the joint attack, the victim was felled to the ground by the combined force of Hughes and Mansour, who forcefully punched the victim to the ground. Thereafter, the victim was forcefully kicked by Mansour and kicked and stomped upon by Hughes.

THE FINDINGS OF THE SENTENCING JUDGE

1. On sentence, it was submitted to her Honour that the grievous bodily harm suffered by the victim was at the lower end of the scale. Her Honour observed that the scale was a wide one, which extended to very significant injuries including permanent brain damage. She concluded that the injury in the present case was at the lower end of the scale, although she also observed that this "did not mean ... that the offence was not a serious one".

1. Her Honour proceeded to make reference to a number of other factors which were relevant in assessing the seriousness of the conduct of the two applicants. Her Honour said (at AB 99):

"The nature and number of blows and the circumstances in which they were inflicted are to be taken into account. In the present case these two powerfully built young men each delivered a forceful punch and kick to Mr McGuinness and Mr Hughes also stomped on the victim. After Mr McGuinness had been felled he was effectively unconscious and unresisting. The level of violence displayed was not at the highest end, of course, however it was significant. It was unprovoked, unwarranted and frankly sickening, as a view of the CCTV footage bears out. The offenders were not armed and that is to be brought into account, however they used their fists and feet as effective weapons. This was a brutal attack and it was cowardly in the circumstances."

1. Specifically in relation to the offence of affray, her Honour observed (at AB 100):

"The scale and level of violence, its duration and circumstances in which it occurred are all relevant considerations...Here the affray took place in a crowded nightclub. A viewing of the CCTV footage is persuasive evidence that the violent action of the offenders, the punch and kick by Mr Mansour and the punching, stomping and kicking by Mr Hughes, clearly had a capacity to engender fear. Indeed, in this case the bystanders were subjected to not only to seeing the cowardly and violent attack perpetrated on Mr McGuinness, but also the aftermath of it. Some patrons can be seen on the CCTV footage pointing out or looking at Mr McGuinness lying unconscious and bleeding on the floor."

1. Her Honour then proceeded to recount the subjective circumstances of each of the applicants.

1. In the case of Hughes, her Honour found that he had expressed regret for his behaviour, that he had expressed remorse, and that he felt ashamed of his conduct. Her Honour also made reference to the fact that Hughes had acknowledged a problem with alcohol, and had resolved to address it. For these reasons, she concluded that his prospects of rehabilitation were good.

1. Her Honour noted that Hughes had appeared at the Liverpool Local Court on 29 September 2009, approximately three and a half weeks prior to the commission of the present offence, and had been given a bond under s. 9 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") for a period of 12 months in respect of a charge of stalking and/or intimidating. This was a circumstance of aggravation.

1. In respect of Mansour, her Honour found that he was still relatively young at the time of the offence. She found that he had expressed regret and remorse, was significantly affected by alcohol at the time of the commission of the offence, and had good prospects of rehabilitation.

1. As was the case with Hughes, Mansour was also the subject of a good behaviour bond under s. 9 of the Sentencing Act. On 31 August 2009, a little short of seven weeks prior to the commission of the present offences, Mansour had been placed on a bond for a period of 2 years in respect of two counts of assaulting a police officer in the execution of his duty. That bond was imposed in the District Court, following a successful appeal against the decision of a Magistrate to impose a term of 3 months imprisonment.

1. None of her Honour's findings, be they findings as to the facts, the objective seriousness of the offence, or the level of criminality displayed by either of the applicants, were challenged in this appeal.

THE GROUND OF APPEAL

The sentence was manifestly excessive in all of the circumstances.

1. In advancing this ground of appeal, counsel for the applicants was not able to identify any specific error on the part of the sentencing judge. He submitted that an inference should be drawn from the sentences imposed in each case that there was a failure on the part of the sentencing judge to properly exercise her discretion (see generally House v The King (1936) 55 CLR 499 especially at 505).

1. As I understood it, counsel advanced the proposition that such an inference should be drawn from:

(i)   Judicial Commission statistics; and

(ii)   an asserted inconsistency between her Honour's findings as to the degree of bodily harm sustained by the victim, and the sentences which were ultimately imposed.

1. As to the first of those matters, there have been repeated observations regarding the limited use to which such statistics can be put (see for example R v Nikolovska [2010] NSWCCA 169 at [70] per Kirby J (with whom Beazley JA and Johnson J agreed); Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [55]), and the caution with which they are to be approached (see Lobsey v R [2012] NSWCCA 239 at [28]). These observations are particularly apposite in circumstances where, as here, the statistical sample amounted to only 37 cases.

1. The statistics establish that of the 37 cases, 87% of the offenders received non-parole periods of 2 years or less. I do not accept the submission advanced by counsel that the sentence imposed in either case is excessive based on those statistics alone. The issue is not whether the sentence imposed by her Honour in each case fell outside a particular statistical range. Rather, the issue is whether the sentence in each case fell outside the range of the permissible exercise of her Honour's discretion (as to which see Apthorpe v R [2012] NSWCCA 100 at [70] per Garling J). In my view, for the reasons more fully set out below, the sentence imposed did not fall outside of the range which was applicable in the case of each applicant.

1. The second matter relied upon by counsel as a circumstance from which an inference could be drawn that the sentencing discretion had miscarried, was a suggested inconsistency between her Honour's finding as to the degree of bodily harm sustained by the victim, and the sentences imposed.

1. Her Honour concluded (at AB 98) that the injury sustained by the victim was at the lower end of the scale. In the light of the evidence, that conclusion might be viewed as being somewhat favourable to each of the applicants. In any event, the proposition that the non parole period imposed by her Honour in each case was excessive having regard to that finding is, in my view, without merit. The maximum penalty for the offence under s. 35(1) is 14 years imprisonment, with a standard non-parole period of 5 years. Bearing in mind those statutory guide posts, and the totality of the evidence, her Honour's imposition of a non-parole period of just over two years in each case was, in my view, not inconsistent with her finding as to the level of injury which was sustained by the victim.

1. In further support of the submission that there was such an inconsistency, counsel for the applicants relied upon a decision of this court in R v Mitchell; R v Gallagher [2007] NSWCCA 296. In that case (which involved offences against ss. 33 and 35 of the Crimes Act) Howie J (at [27]) observed that a very important aspect in sentencing for this type of offending is the result of the offender's conduct. He also observed that the nature of the injury caused to the victim will, to a very significant degree, determine the seriousness of the offence and the appropriate sentence.

1. It is important to bear in mind that Howie J did not go so far as to say that the result of an offender's conduct was the only consideration to be taken into account when sentencing for offending of this nature. The fact that there are a number of other matters to be taken into account was reiterated by his Honour in a subsequent decision of R v McCulloch [2009] NSWCCA 94; (2009) 194 A Crim R 39 where he said (at [37]):

"Generally speaking the seriousness of the offence will depend upon the seriousness of the wounding. That is not to say that the manner in which the wounding was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wound are irrelevant".

1. In AM v R [2012] NSWCCA 203 Johnson J (commencing at [71]) reviewed the authorities concerning relevant considerations in sentencing for an offence against s33(1) of the Crimes Act. As I have already observed, the present applicants were found not guilty of that offence, and guilty of the statutory alternative. However, there are matters to which his Honour referred which, in my view, are relevant to the determination of an appropriate sentence for both of those offences. They include the degree of violence and the ferocity of the attack (see R v Zhang [2004] NSWCCA 358), the fact that it was sustained and there were opportunities for the offender to desist which were not taken (see R v Westerman [2004] NSWCCA 161), the fact that it was unprovoked (see Matzick v R [2007] NSWCCA 92) and the fact it was perpetrated upon an innocent citizen who was going about his ordinary business (see R v Woods (CCA (NSW) 9 October 1990 unreported).

1. It is also relevant to note that conduct of the nature of that displayed by the present applicants, which involved kicking and stomping, has been described as being "a familiar method of inflicting serious injury in modern times" which is to be regarded by the courts as "abhorrent and worthy ... of condign punishment" (see R v Wright [1998] VSCA 84 at [2] cited by Johnson J in AM v R (supra at [81])).

1. In determining the appropriate sentence her Honour, correctly in my view, did not limit herself to a consideration of the injury sustained to the victim. Having reached the conclusion that the injury was at the lower end of the scale, her Honour immediately, and again correctly, pointed out that this did not mean that the offence was not a serious one. She then proceeded to recount (at AB 99) a number of relevant circumstances of the offending. They included the nature and number of blows inflicted, the fact that the victim was rendered unconscious, and the significant level of unprovoked violence which was displayed by each of the applicants toward the victim. Her Honour's reference to such matters tends wholly against the proposition that there was some inconsistency between her findings and the sentences she ultimately imposed.

1. What brought about the attack upon the victim was a seemingly innocuous incident in which neither of the applicants was in any way involved. Having decided, apparently at the behest of Elmir, to become involved in something which was of no concern to them, each of the applicants engaged in an attack which her Honour described as unprovoked, unwarranted, sickening, brutal and cowardly. That, in my view, was a completely accurate description of what took place. As I have already observed, no complaint is made about her Honour's findings in any respect whatsoever. The conduct of each of the applicants was significantly aggravated by the fact that each was on a good behaviour bond in respect of offences of violence, each bond having been imposed only a matter of weeks before.

1. The victim had a legitimate expectation that he would be able to socialise with his friends at a nightclub without being subjected to acts of violence of the kind her Honour described. As her Honour pointed out, the attack was perpetrated upon the victim in total disregard of his entitlement to a sense of security and personal safety, and was one which left him with a number of physical and psychological injuries. Despite her Honour's assessment that those injuries fell at the lower end of the relevant scale, they were nevertheless significant, as was the offending overall.

1. In my view the sentences imposed by her Honour were not unreasonable, nor were they plainly unjust (see Dinsdale v The Queen (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J). It follows that the sentences were not manifestly excessive and the ground of appeal has not been made out. The submissions advanced on behalf of each of the applicants do not, in my view, justify a grant of leave to appeal.

1. I propose the following order:

(i)   leave to appeal refused.

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Decision last updated: 28 February 2013