Melvaine v The Queen

[2019] NSWCCA 274

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Melvaine v R [2019] NSWCCA 274
Hearing dates:	9 October 2019
Date of orders:	11 November 2019
Decision date:	11 November 2019
Before:	Macfarlan JA at [1] Johnson J at [2] Cavanagh J at [3]
Decision:	(1)   Leave to appeal against the sentence is granted. (2)   The appeal is dismissed.
Catchwords:	CRIME — appeals — appeal against sentence — application for leave to appeal — one count of aggravated robbery with wounding contrary to s 96 of the Crimes Act 1900 (NSW) — sentencing judge's description of applicant's conduct as a 'gratuitous act of cruelty' went to the objective seriousness of the offence — no finding made of an aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) although this was open to sentencing judge — whether sentence was manifestly excessive — whether sentencing judge failed to have due regard to applicant's subjective factors — no error in sentencing process — appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 96 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(f)
Cases Cited:	Aguirre v R [2010] NSWCCA 115 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Hughes v R [2018] NSWCCA 2 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48
Category:	Principal judgment
Parties:	Bradley William Melvaine (Applicant) Regina (Respondent)
Representation:	Counsel: Mr S Fraser (Applicant) Ms K Jeffreys (Respondent)   Solicitors: Aboriginal Legal Service NSW/ACT (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2016/57243
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 September 2018 Before: Zahra SC DCJ File Number(s): 2016/57243

Judgment

1. MACFARLAN JA: I agree with Cavanagh J.

2. JOHNSON J: I agree with Cavanagh J.

3. CAVANAGH J: By notice of application for leave to appeal filed on 2 July 2019, the applicant, Bradley William Melvaine, seeks leave to appeal from a sentence imposed by the District Court of New South Wales at Sydney on 13 September 2018 with respect to a single count of aggravated robbery with wounding, pursuant to s 96 of the Crimes Act 1900 (NSW).

4. The applicant originally entered a plea of not guilty. Following a hearing on the voir dire, the applicant pleaded guilty to the charge. The offence carries a maximum penalty of imprisonment for 25 years.

5. On 13 September 2018, the applicant was sentenced to imprisonment for a period of eight years and six months, with a non-parole period of six years. The sentencing judge allowed a discount of 15 per cent on account of the utilitarian value of the plea of guilty.

6. The applicant is eligible for release on parole on 21 February 2022.

7. The applicant appeals against his sentence. There are two grounds of appeal as follows:

1. Ground 1: The Sentencing Judge erred in finding that the applicant’s conduct amounted to a ‘gratuitous act of cruelty’.

2. Ground 2: The sentence is manifestly excessive.

Background Facts

8. There was an agreed statement of facts. They were summarised by the sentencing judge. They may be further summarised for the purposes of this appeal as follows.

9. On 20 February 2016, the applicant attended a friend’s party at Chester Hill where he remained until 2.20am the next day. He was observed to become intoxicated and aggressive. Whilst he was walking to a second party with another man, he had an argument with an unknown person. That person called the Police. The Police attended and spoke to the applicant, who was carrying a bottle of alcohol. The applicant continued onto the second party.

10. At the second party he was also observed to be aggressive and made threats. He was asked to leave the party at approximately 3.30am and he did so.

11. In the early hours of the morning of 21 February 2016 the victim, then aged 76, was walking from his house to Bass Hill Plaza to buy the newspaper. He was carrying a blue enviro bag containing a wallet with $400 cash, an umbrella and a pair of scissors which he was taking so that the news agency could cut the newspapers out of their plastic wrappers.

12. The victim was in receipt of the age pension and had withdrawn the $400 cash four days earlier. He intended that that amount would last him the fortnight.

13. As he was walking down Chester Hill Road, the applicant approached the victim and punched him to the side of the face without any notice. The victim’s eyebrow split and blood ran down his face. The force of the blow caused the victim to fall backwards against the fence. He felt sharp pain against his back. The victim then attempted to move from the fence but, as he did so, the applicant pushed him in the chest causing him to fall backwards against the fence again. The applicant then punched the victim to the face several times, causing further lacerations and facial fractures.

14. The applicant yelled “Where’s your money?” The victim responded “You’re not going to get it”. The applicant ripped the shopping bag off the victim’s arm, causing pain to his arm. He started searching for the victim’s wallet. The victim said “Don’t take it. I need money for during the week”. The applicant removed the $400 from the wallet before throwing two $50 notes and the wallet back down at the victim. The applicant then ran away taking the $300 with him. Some time thereafter the victim got up and walked to the nearby Bass Hill Plaza.

15. At 4.30am, the applicant returned to the second party covered in blood and carrying his shirt in his hands. He had blood on his face, on his forehead, hands and arms. The applicant’s knuckles on both hands were bruised and red. The applicant then threw $600 in cash onto the lounge. The cash had blood on it. He started screaming words to the effect that he had “just killed a cunt for this”.

16. It was also an agreed fact that the applicant had said after the assault that he had walked up to Donny’s and went into Donny’s kitchen and started hitting him and that Donny had accused him of “shit two years ago” and he was pretty sure he had “killed him”. The person known as Donny Beckett denied that he had been assaulted by the applicant and had no injuries.

17. The victim sustained a number of severe facial injuries and an injury to his finger. He will never regain full sensation in his index finger. He required operative treatment and spent nine days in hospital, followed by physiotherapy and needing assistance to walk.

18. The applicant originally denied robbing and assaulting the victim. He pleaded guilty on the second day of the hearing of applications and prior to a jury being empanelled. As observed by the sentencing judge, the photographs depict extensive and substantial injuries to a frail elderly man.

19. The sentencing judge found that the objective seriousness of the offending was of an extremely high order. He also stated:

“The conduct of the offender was callous and cowardly. The degree of violence upon such a frail and elderly man going about his life cannot be comprehended. It is impossible to comprehend not only the initial attack upon the victim but also why the offender continued with such senseless violence against the victim by repeatedly punching him to the face and causing multiple fractures to his facial bones and significant lacerations. The conduct of the offender was a gratuitous act of cruelty towards the victim. The conduct represents malevolence of a high order”.

20. The sentencing judge also considered that the conduct amounted to a grievous interference with the rights of the victim and that he suffered an indignity of a substantial and degrading attack upon him in a public place. The sentencing judge made particular reference to the right of aged persons to require the protection of the Courts because of their vulnerabilities and to the taking of the victim’s pension moneys whilst the victim pleaded with the applicant for its return. The sentencing judge stated that the sentence to be imposed must reflect strong elements of denunciation and deterrence.

21. The applicant does not challenge these comments as part of his appeal, except to the extent that there is a reference to the conduct being a gratuitous act of cruelty towards the victim.

Ground 1

22. The applicant submits that the reference in the remarks on sentence (“ROS”) to the conduct of the offender being a gratuitous act of cruelty is:

1. a finding that wrongly impacted upon the sentencing judge’s assessment of objective seriousness;

2. a finding which reflects error on the part of the sentencing judge such that this Court should intervene and resentence.

23. The respondent submits that the reference to the conduct of the applicant being a gratuitous act of cruelty towards the victim was part of the sentencing judge’s detailed reasons for finding that the objective seriousness of the offending was of an extremely high order but the use of such a phrase should be considered in the context of other phrases used in the same paragraph which also led to the finding that the offence was of an extremely high order.

24. The respondent submitted that the ROS did not support the applicant’s contention that the sentencing judge was taking into account the aggravating factor found in s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”) (that is, the offence involved gratuitous cruelty). The respondent submitted that all of the various words and phrases used by the sentencing judge to describe the nature of the attack merely formed part of the reasons for the ultimate finding of objective seriousness and that the reference to gratuitous cruelty was not a specific finding of an aggravating factor.

25. In the alternative, the respondent submitted that it would have been open to the sentencing judge to find that the aggravating factor within the meaning of s 21A(2)(f) of the Act was present, having regard to the particular circumstances of the attack on the victim. The respondent submitted that, specifically, the additional blows to the victim’s face (that is, after the initial punch) were completely unnecessary and deserving of the description of gratuitous cruelty.

Consideration

26. In McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 (“McCullough”), Howie J said at [30]:

“30   Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain.”

27. The applicant submitted that having regard to McCullough, there could only be a finding of gratuitous cruelty if the infliction of the pain was an end in itself; that is, a finding of needless yet intentional, violence committed simply to make the victim suffer was required. The infliction of pain as an end in itself has been referred to as a necessary component for a finding of the aggravating factor of gratuitous cruelty in a number of cases including Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48 at [59] and Aguirre v R [2010] NSWCCA 115 at [64]–[65].

28. There are a number of problems with Ground 1 and the applicant’s submissions in relation thereto.

29. Firstly, the description that the conduct of the applicant was a gratuitous act of cruelty towards the victim was made as part of the series of statements in which the sentencing judge intended to describe and elaborate on the extreme level of violence inflicted upon the victim. The sentencing judge makes no finding that his description of the conduct of the applicant as being a gratuitous act of cruelty was a finding of an aggravating factor for the purposes of s 21A of the Act.

30. Secondly, the sentencing judge makes no finding that the particular description of the conduct as being a gratuitous act of cruelty is otherwise an aggravating factor which he took account of over all others, or in some particular way, for the purposes of determining the objective seriousness of the offence. The finding of objective seriousness as being of an extremely high order was made in the first sentence three paragraphs earlier. What follows is an explanation of the basis for that finding leading to the ultimate conclusion that the conduct represents malevolence of a high order.

31. Thirdly, even if the sentencing judge was intending to make a finding in accordance with s 21A(2)(f) of the Act for the purposes of taking account of the aggravating factor in determining the appropriate sentence, there is evidence which would have allowed such a finding. The applicant emphasises the nature of the offence (s 96 of the Crimes Act — robbery with wounding) in the sense that the offence itself will always involve actual and even unnecessary violence.

32. However, as set out earlier, the applicant first punched the victim in the side of the face. This caused him to fall against the fence.

33. When the victim attempted to move back off the fence the applicant pushed him in the chest so that he was forced back onto the fence. The applicant then punched him in the face several more times. Before landing those blows, the victim was already up against the fence with nowhere to go, with the applicant having already punched him with such force that blood was coming from his eyebrow. The victim’s attempt to move away from the fence after the first punch had been prevented by the applicant simply pushing him back.

34. The victim was 76 at the time. The additional punches to the face would fall within the description of needless violence intended to make the victim suffer. Any submission that the additional blows should be taken to have some purpose as part of the robbery, that is, not going beyond the infliction of violence as part of the robbery as if they were part of the process of extracting the money from a recalcitrant victim, should be rejected.

35. For the reasons set out the applicant has failed to demonstrate error under Ground 1.

Ground 2

36. The approach to an appeal based on a ground that the sentence is manifestly excessive was set out in Hughes v R [2018] NSWCCA 2 at [86] as follows:

“86.   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].”

37. The applicant accepted, as he was required to, that there is no single correct sentence and that the applicant must demonstrate the sentence is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]–[27].

38. The applicant accepted that there were a number of aggravating factors such as that the victim was a vulnerable person, the violence was significant and without justification and the sum taken represented a significant sum to the victim. Further, the applicant accepted that the injuries inflicted exceeded that which was required to meet the elements of the offence and the fact that the applicant was on conditional liberty at the time was a matter of aggravation on sentence.

39. Against that, the applicant submitted that the subjective factors called for a significant mitigation on sentence. Those factors are that he was a young Aboriginal man (21 years old at the time of offending) who had suffered significant disadvantage during upbringing and that he was found to have a significant underlying mental health condition, although the diagnosis was not clear. Further, he was found to be genuinely remorseful and demonstrated insight into his offending and the link between his substance abuse and offending.

40. Having regard to these factors the applicant submitted that the sentence imposed fell outside and above a legitimate discretionary range.

Consideration

41. In my view, the applicant has not established that the sentence was unreasonable or plainly unjust. It is not apparent that there has been some misapplication of principle. The applicant has not demonstrated that the sentence is so far outside the range of sentences available that there must have been error. The objective seriousness was assessed as being of an extremely high order. The applicant was on conditional liberty at the time of commission of the offence. The maximum penalty was 25 years imprisonment. Further, the sentence included a reduction in the non-parole period to 70.6 per cent of the overall term to reflect the sentencing judge’s finding of special circumstances and to allow two years and six months’ intensive long supervision upon his release.

42. The sentencing judge did not fail to have regard to the applicant’s subjective features. The sentencing judge referred to the applicant’s family history of mental illness and the diagnosis of schizophrenia, paranoid-type substance use disorder. The sentencing judge also referred to the disagreement between the psychiatric experts as to the ultimate diagnosis with Dr Elliott not agreeing that the applicant suffered from chronic schizophrenia or any other psychotic illness.

43. The sentencing judge referred to the applicant’s disadvantaged background and his behavioural problems as a child. The sentencing judge referred to the applicant’s underlying mental health conditions, likely making the serving of a sentence of imprisonment more onerous and took that into account as part of the general mix of subjective circumstances.

44. The sentencing judge specifically had regard to his prior criminal record and the circumstances of his offending and considered the need for personal deterrence and protection to the community. The sentencing judge specifically referred to the decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, finding that the circumstances in which the applicant was raised mitigate the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in the way the applicant’s life has been marred.

45. For the reasons that I have set out, I do not consider that the applicant has demonstrated error such as to permit this Court to intervene. The applicant has not demonstrated that the sentence is markedly different from sentences imposed in other cases. The applicant has not demonstrated that there must have been some misapplication of principle by the sentencing judge. The applicant has not demonstrated that the sentence was unreasonable or plainly unjust.

41. In the circumstances, Ground 2 is not established.

Orders

47. It follows that the orders which I propose are:

1. Leave to appeal against the sentence is granted.

2. The appeal is dismissed.

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Decision last updated: 11 November 2019