Mocerino v The King

[2024] NTCCA 12

CITATION:Mocerino v The King [2024] NTCCA 12

PARTIES:MOCERINO, Nicholas John

v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:AP 6 of 2024 (22306932)

DELIVERED:  27 November 2024

HEARING DATE:  26 November 2024

JUDGMENT OF:  Grant CJ, Kelly and Brownhill JJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – Manifest excess

Whether sentence manifestly excessive – Sentence of imprisonment for two years and eight months not manifestly excessive – Not so far outside range as to bespeak error – Sentencing Judge took into account objective circumstances and relevant subjective circumstances – Whether denial of procedural fairness – Whether applicant denied opportunity to make submissions – Application for leave to appeal dismissed.

Criminal Code 1983 (NT) s 174E

Barbaro v The Queen (2014) 253 CLR 58, applied.

Weir v The Queen [2011] NSWCCA 123, distinguished.

REPRESENTATION:

Counsel:

Applicant:J Tippett KC

Respondent:  LJ Auld

Solicitors:

Applicant:Maleys Barristers & Solicitors

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  12

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Mocerino v The King [2024] NTCCA 12

AP 6 of 2024 (22306932)

BETWEEN:

NICHOLAS JOHN MOCERINO

Applicant

AND:

THE KING

Respondent

CORAM:    GRANT CJ, KELLY & BROWNHILL JJ

REASONS FOR JUDGMENT

(Delivered on 27 November 2024)

THE COURT:

1. On 4 September 2024, the applicant pleaded guilty to one count of negligently causing serious harm contrary to s 174E of the Criminal Code 1983 (NT).

2. The sentencing Judge imposed a sentence of two years and eight months, suspended after eight months, with an operational period of two years from the date of release.

3. The applicant applied for leave to appeal against that sentence on the ground that the sentence is manifestly excessive.

4. On 26 November 2024, we dismissed the application for leave to appeal on the basis that the proposed grounds of appeal had no merit, with reasons to be published. These are our reasons.

   The circumstances of the offending

5. The circumstances of the offending were that the applicant, who was 24 years old, and his co-offender, who was 20 years old, knew each other through their work in the Australian Defence Force.

6. The victim was 48 years old and unknown to them.

7. On 15 January 2023, the applicant and co-offender were at a bar where they consumed alcohol throughout the evening. The victim was also present. He was intoxicated and had no memory of the incident due to his level of intoxication and the injuries he sustained.

8. At about 11.08 pm, the victim was near the stage area of the bar and both offenders were dancing near the stage. They tried to engage with the victim by directing dance moves at him. The co-offender held out his hand for the victim to shake but the victim was in his own world, dancing to the music. He turned away from both offenders. He then spoke briefly to a friend. The co-offender walked over to the victim and his friend, while the applicant lingered nearby watching. The victim’s friend walked away.

9. Without warning, the co-offender pushed the victim forcefully with both hands and he stumbled backwards. The co-offender walked towards the victim and again pushed him forcefully with both hands, causing the victim to again stumble backwards. The co-offender took up a fighting stance and before the victim could react, the co-offender punched the victim to the face. The applicant was standing within a metre, watching on. The victim covered his face and the co-offender punched him twice to the face in quick succession. The force of the punches pushed the victim backwards against the wall. The applicant remained standing close to the co-offender and the victim and was watching the assault.

10. While the co-offender stood over the victim, he turned and handed his sunglasses to the applicant to look after. The applicant took the sunglasses and the co-offender then punched the victim, who was still standing against the wall, in the face four times. He then grabbed the victim and pulled him down into a knee strike directed at the victim’s face. The co-offender motioned for the victim to stand up before he punched him in the face again. He continued to stand over the victim, who was hunched over. The applicant briefly wandered away to a nearby table.

11. The bar manager noticed the co-offender and the victim and saw that the victim was bleeding from his nose and mouth. Seeing the bar manager, the applicant quickly walked back to the co-offender and the victim. The bar manager took the victim and walked him towards the rear bathroom. The offenders followed.

12. As the victim was being assisted by the bar manager, the applicant kicked the victim to the lower half of his body. The co-offender tried to push past the bar manager to get to the victim, but the bar manager blocked him and pushed him backwards, causing the co-offender to lose his footing. The co-offender grabbed the bar manager’s arm and pulled him to the edge of the stage. While this was happening, the applicant punched the victim to the side of his face. The force of the punch knocked the victim to the ground and rendered him unconscious briefly. The bar manager tried to grab the applicant to stop his assault. While he did so, the co-offender stood up and stood over the victim, who was awake but still on the ground. The bar manager and the applicant scuffled before the bar manager grabbed him from behind and escorted him from the bar. The co-offender had other altercations before the bar manager escorted the applicant out, followed by the co-offender, with assistance from a security guard. The co-offender continued to yell at the bar manager for about two minutes, challenging him to a fight before the applicant managed to get him to walk away.

13. The next day the co-offender presented himself to Police and following further investigation, the applicant did the same.

14. The victim did not seek medical assistance that night. He woke up the next day in pain with a swollen jaw. He took pain medication and went back to sleep. On 20 January 2023, he went to a medical centre for a medical certificate and was directed to have an x-ray which revealed a comminuted nasal fracture and three fractures to his jaw. He was admitted to hospital on 25 January 2023 where he underwent an open reduction and internal fixation of his jaw under general anaesthetic. Two small plates were inserted to permit the fracture to heal. Without treatment, he was at risk of permanent jaw malocclusion, which could cause pain and difficulty eating. The injuries comprised serious harm.

    The sentence

15. The applicant had no criminal history and, as the sentencing Judge observed, was sentenced on the basis that he was a first offender and this conduct was out of character for him.

16. The sentencing Judge applied a discount of 25% to reflect the early guilty plea and remorse, and an additional 8% to reflect the assistance to authorities which the applicant had given by presenting himself to Police, and had promised to give by way of evidence at the co-offender’s trial. The sentencing Judge considered that assistance to be limited in circumstances where the entirety of the alleged offending was captured on CCTV and his evidence would likely only go to any formal issue that may arise in respect of identification.

17. As stated at the outset, the applicant was sentenced to imprisonment for two years and eight months, with eight months to serve.

    The proposed grounds of appeal

18. The applicant has made an application for leave to appeal from the sentence. The proposed grounds of appeal are:

    (a)that, in all the circumstances, the sentence imposed was manifestly excessive because the applicant was ordered to serve a term of actual imprisonment; and

    (b)that the applicant was denied procedural fairness because although both parties had submitted that a wholly suspended sentence was within range, the sentencing Judge departed from that position in a manner which denied the applicant the opportunity to make submissions against the imposition of a sentence which involved a period of actual imprisonment.

    Manifest excess

19. The sentence of two years and eight months, with eight months to serve, is not manifestly excessive. It is not so far outside the range of a reasonable discretionary judgment as to itself bespeak error. The maximum penalty for this offence is imprisonment for 10 years. Because the crime of negligently causing serious harm covers a wide range of circumstances, the sentences imposed for the offence do not disclose either a tariff or a clearly defined sentencing range. However, a review of comparative sentences shows that a starting point of five years is not an unusual disposition, and that offenders are frequently required to serve 12 months or more in actual imprisonment before an order suspending sentence takes effect. We do not accept that the seven comparatives provided by the applicant, which disclosed sentences of imprisonment from 14 months to three years, are representative of the range of sentences imposed for this type of offending, or indicate that a starting point of imprisonment for four years is so far outside the range to bespeak error.

20. In this matter, the sentencing Judge found that the attack by the applicant and his co-offender was unprovoked and callous. The victim was vulnerable and plainly unable to defend himself. The applicant’s offending comprised, firstly standing and watching his co-offender assault the victim, supporting his assault by his presence and by taking the co-offender’s sunglasses, doing nothing to stop that assault or assist the victim, kicking the victim when he was injured and being assisted by the bar manager, then punching him with such force that he was rendered briefly unconscious. The sentencing Judge found beyond reasonable doubt that the applicant was well aware that his co-offender acted with intent to hurt the victim and cause him pain, and that, when the applicant intervened, he also intended to hurt the already injured victim and cause him pain. The sentencing Judge found the applicant’s moral culpability for what happened to the victim to be equal to the co-offender’s culpability, and of a high order.

21. His Honour said this was not a case in which serious harm was caused accidentally but negligently. Rather, the violence visited on the victim was intended and the consequences for the victim were very serious.

22. We reject the applicant’s argument that, in circumstances where the applicant was not charged with involvement in the co-offender’s offending, the sentencing Judge gave too much weight to the applicant ‘standing by and doing nothing’ while his co-offender assaulted the victim. The applicant pleaded guilty on the basis of agreed facts which referred to s 43BG of the Criminal Code (the provision which provides that, inter alia, a person who aids or abets the commission of an offence by another person is taken to have committed the offence), and which identified the co-offender as ‘the co-accused’. The same charge was brought against both offenders in circumstances where they both assaulted the victim by blows to the face and it could not be established beyond reasonable doubt which blows had caused the serious harm sustained by the victim. The offending to which the applicant pleaded guilty was a course of conduct, committed jointly, which negligently caused the serious harm to the victim. The sentencing Judge’s reference to the applicant’s conduct from the time the co-offender delivered the first punch to the victim’s face was proper as it was part of the offending conduct by the applicant. To the extent that facts were referred to prior to that first punch, those facts were relevantly part of the context and circumstances of the offending.

23. The applicant’s reliance on nine character references was approached with caution given that the sentencing Judge found that a number of the referees did not accurately understand the true nature and seriousness of the offending. Nevertheless, the sentencing Judge accepted that the applicant had no criminal record, had demonstrated an admirable level of community participation, was a relatively young man, was unlikely to reoffend and was of prior good character.

24. The sentencing Judge found that the pre-eminent sentencing objectives were punishment, denunciation and general deterrence. We accept the respondent’s submission that violence in public places, especially involving random and unprovoked attacks on vulnerable victims, is prevalent and a matter of significant public concern, particularly when that violence is committed in company and results in serious harm. Even where an offender has a compelling subjective case, a term of actual custody should ordinarily be imposed. That is so regardless of the Crown’s attitude as to whether a custodial sentence is required.

25. This proposed ground of appeal has no merit.[1]

    Denial of procedural fairness

26. The second proposed ground of appeal is that the applicant was denied procedural fairness because although both parties had submitted that a wholly suspended sentence was within range, the sentencing Judge departed from that position in a manner which denied the applicant the opportunity to make submissions against the imposition of a sentence which involved a period of actual imprisonment before the order suspending sentence took effect.

27. There is no basis on which this ground of appeal could properly be pressed. The transcript of the sentencing proceedings clearly records the sentencing Judge advising defence counsel: (a) that he did not necessarily accept the submission that the co-offender was the ‘principal offender’;[2] (b) that he agreed that a suspended sentence was appropriate, but that the real issue was the ‘time to be served before the sentence is suspended’;[3] and (c) that a wholly suspended sentence was not within range.[4] Defence counsel had ample opportunity to address those matters by way of submission, and took advantage of that opportunity by addressing the issue at some length.[5]

28. It was not to the point that the Crown did not oppose an order wholly suspending sentence. As the sentencing Judge drew to the prosecutor’s attention during the course of sentencing submissions, although a period of actual imprisonment would not assist the applicant’s prospects of rehabilitation, the other sentencing purposes of punishment, denunciation and general deterrence also had to be given effect.

29. As counsel for the applicant ultimately conceded, the decision in Weir v The Queen [2011] NSWCCA 123 does not assist the applicant’s cause. That was a case in which the sentencing judge had indicated it was highly likely that the offender would be sentenced to imprisonment for three years with a non-parole period of 18 months. In light of that indication, the offender’s counsel advised the court that it was unnecessary for him to take instructions or make any further submissions on the proposed sentence. The sentencing judge subsequently imposed a head sentence of imprisonment for four years.

30. The New South Wales Court of Criminal Appeal found that in those particular circumstances the sentencing judge was obliged to grant the offender an opportunity to make further submissions if he subsequently determined he was going to impose a longer sentence. In the present case, the sentencing Judge clearly put defence counsel on notice that he was considering the imposition of a period of actual imprisonment before the order suspending sentence took effect, gave defence counsel opportunity to make submissions in relation to that matter, and defence counsel made those submissions.

31. Similarly, the decision in Wilson v Hill (unreported, NTSC, Martin CJ, 12 January 1995) also does not assist the applicant. In that case, all of the submissions and interchange between counsel and the sentencing Magistrate related to the exercise of the power not to record a conviction and the imposition of monetary penalties, but the Court imposed a term of imprisonment without indicating any intention to do so or giving the appellant the opportunity to be heard about that as a potential disposition. That case is nothing like the present, where the sentencing Judge made his considerations as to a term of actual imprisonment clear and counsel for the applicant made submissions as to why that penalty should not be imposed.

32. Nor is there any substance to the complaint made in submissions that the sentencing Judge failed to afford the applicant an opportunity to request a pre-sentence report so that an intensive community corrections order could be imposed. Defence counsel had every opportunity to make that application, and well understood that the sentencing Judge was considering the imposition of a term of imprisonment in conjunction with an order suspending sentence.

33. This proposed ground of appeal also has no merit.

    Order

34. The application for leave to appeal is dismissed.

________________________

[1]See Barbaro v The Queen (2014) 253 CLR 58 at [4], [30], [32]-[38] per French CJ, Hayne, Kiefel and Bell JJ.

[2]Transcript, 4 September 2024, pp 7-8: Appeal Book (‘AB’) 57-58.

[3]Ibid, pp 8-9, 20: AB 58-59, 70.

[4]Ibid, pp 12: AB 68.

[5]Ibid, pp 9-10, 12, 13, 14, 15: AB 59-60, 62, 63, 64, 65.