O'Connor v Regina

[2011] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

O'Connor v Regina [2011] NSWCCA 161

Hearing dates:

8 July 2011

Decision date:

20 July 2011

Before:

Beazley JA at 1;
Hall J at 38;
Harrison J at 39

Decision:

1. Leave to appeal granted;

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - sentence - leave to appeal against sentence for recklessly causing grievous bodily harm - applicant served non-parole period - applicant released on parole - whether sentence imposed by sentencing judge was manifestly excessive - whether appropriate to reduce the balance of the term imposed by the sentencing judge - sentence imposed by sentencing judge was within an appropriate sentencing discretion - leave granted - appeal dismissed

Legislation Cited:

Crimes Act 1900
Criminal (Sentencing Procedure) Act, 1999

Cases Cited:

R v Thomson (2000) 49 NSWLR 383
R v Way [2004] NSWCCA 131

Category:

Principal judgment

Parties:

Michael Joseph O'Connor (Applicant)
Regina (Respondent)

Representation:

In person (Applicant)
J Pickering (Respondent)
In person (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2009/6634

 Decision under appeal 

Citation:

R v Michael Joseph O'Connor

Date of Decision:

2009-12-18 00:00:00

Before:

Keleman DCJ

File Number(s):

2009/6634

Judgment

1. BEAZLEY JA : On 8 September 2009, the applicant pleaded guilty before Keleman DCJ to the offence of recklessly causing grievous bodily harm to Henrietta Kahui on 4 August 2098 contrary to the provisions of the Crimes Act 1900, s 35(2). An offence under that section carries a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years. As the applicant pleaded guilty, the standard non-parole period does not apply to the sentencing process. However, it remains as a reference point for the sentencing judge in determining what sentence to impose: R v Way [2004] NSWCCA 131.

1. His Honour sentenced the applicant to a non-parole period of 2 years 6 months expiring on 12 June 2011, being the first day upon which the applicant was eligible to be released. His Honour imposed a total term of imprisonment of 4 years commencing on 13 December 2008. In imposing this sentence, the sentencing judge allowed a discount of 10 per cent on the sentence that otherwise would have been appropriate, having regard to the utilitarian value of the plea of guilty, which was entered on the day the offender was due to stand trial: see R v Thomson (2000) 49 NSWLR 383. See also the Criminal (Sentencing Procedure) Act , 1999, s 22.

1. The applicant seeks leave to appeal against sentence on the ground that the sentence imposed is manifestly excessive. The applicant has already served his non-parole period and has been released on parole. On the hearing of the application for leave to appeal, the applicant, who appeared in person, informed the Court that he seeks a reduction in the balance of the term that was imposed by the sentencing judge. In effect, the applicant seeks a reduction of the period of 18 months on which he is on parole. As he put the matter to the Court, " 18 months is a long time ".

Circumstances of the offence

1. The applicant was sentenced on the basis of the following agreed facts. On 4 August 2008, Ms Henrietta Kahui was performing traffic control duties at Lurnea, where roadworks were underway. At about 11.45 am, the applicant was riding his bicycle along West Street, Lurnea. As he approached the intersection where the roadworks were being undertaken, Ms Kahui said to the applicant, " You can't ride across here, the tar is still hot ".

1. Notwithstanding this warning, the applicant continued to ride his bicycle across the intersection. As he road past Ms Kahui, she said, " You idiot you shouldn't ride on hot tar ". In response to this rebuke, the applicant got off his bicycle, threw it to the ground, walked quickly towards Ms Kahui and said, " I can ride wherever I fuckin want ". Ms Kahui commenced to say something back to him, when the applicant punched on the right cheek with a closed fist, causing her immediate pain. Ms Kahui put her hands up, trying to defend herself, but the applicant punched her a second time with his closed fist, this time with his hitting her on the mouth, causing her to fall to the ground.

1. As a result of the fall, Ms Kahui sustained a fibula fracture and a tibial plafond fracture in her right lower leg. She required hospitalisation and underwent an open reduction and internal fixation of the fractures. Ms Kahui also sustained facial injuries caused by the punches to her face.

1. Fellow workers of Ms Kahui chased and caught the applicant. A violent struggle ensued, but the fellow workers were able to subdue the applicant and detained him until the police arrived. The applicant sustained a number of facial injuries during the course of this struggle.

1. The applicant, when arrested, admitted that he had assaulted Ms Kahui. However, he said:

"Yeah I did it, but I didn't know it was a girl, look at me I got mine back, she shouldn't have mouthed off at me."

1. The applicant received medical treatment for his facial injuries and also required other treatment which is referred to below.

Sentencing principles

1. The purposes for which a court may impose a sentence upon an offender are now identified in the Crimes (Sentencing Procedure) Act 1999, s 3A as follows:

" 3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community."

1. In this case, the sentencing judge identified the offence as " objectively serious " and considered that for offences of this type, general deterrence and punishment were of particular importance. His Honour also considered that having regard to the applicant's prior criminal history, to which I shall refer shortly, personal deterrence was of considerable importance.

The applicant's personal background

1. The applicant's background and personal circumstances reveal dysfunctional family relationships, drug and alcohol abuse, and a long criminal history commencing as a juvenile at about age 15 and extending to his last conviction, being only two months prior to the assault the subject of the present application.

1. The applicant has been convicted of various break enter and steal offences, various driving offences, drug and alcohol offences, malicious damage offences, wilful and unlawful destruction of property offences and, most significantly for the purposes of the present matter, a number of prior assault offences, three of which were assaults occasioning actual bodily harm.

1. As a result of this long history of criminal activity, the applicant has been placed on bonds, fined, committed to juvenile institutions, sentenced to periods of community service and to periodic detention, had suspended sentences imposed and has been sentenced to imprisonment on two separate occasions for non parole periods of 6 months.

1. The offence immediately prior to the present offence for which he was sentenced on 6 June 2008 at Liverpool Local Court involved a common assault, damage to property and possession of a prohibited drug. In respect to the first two of those offences, the applicant was subject to two s 12 bonds for a period of 8 months, which still had 6 months to run at the time of this offence. Two and a half months earlier, that is, on 19 March 2008, the applicant had been sentenced at Liverpool Local Court on drug charges and placed on a s 9 bond for 18 months, which likewise was current at the time of this offence.

1. In a pre-sentence report dated 2 November 2009 tendered at the sentence hearing, it was reported that the applicant had recently made attempts to change his life by maintaining his own rental property and spending time with positive peer influences. The author of the pre-sentence report considered that the applicant was making a concerted effort to change his lifestyle. He was also in reasonably steady employment, working three to five days a week as a builder's labourer. He gave evidence before the sentencing judge that his former employer was prepared to have him back at work following his release. His Honour was prepared to accept that evidence.

1. His Honour also accepted the applicant's evidence that about 2 to 3 months prior to the sentencing hearing he had been diagnosed with a Post Traumatic Stress Disorder, and had been prescribed antidepressants and was also on antipsychotic medication. The applicant gave evidence that the Post Traumatic Stress Disorder was said to have been caused by numerous attempts on the applicant's life which occurred in around June 2008. His Honour accepted that his condition explained the applicant's level of anxiety at the time of the offence.

1. His Honour also appears to have accepted that the applicant had moderated his alcohol intake but that he continued to be an occasional user of cannabis. The applicant at that time had not undertaken any programmes to address his drug and alcohol problem.

1. In his evidence on the sentencing hearing, the applicant gave two explanations for his offending behaviour on this occasion. First, he contended that Ms Kahui called him a " retard ". He said he reacted badly to this because his younger brother, with whom he maintained a good relationship, suffered from Down syndrome. His Honour did not accept this evidence, but did accept, that as set out in the statement of agreed facts, that Ms Kahui had called the applicant an " idiot ".

1. The second explanation that the applicant proffered for his conduct was that he did not know that Ms Kahui was a woman. He thought that the person who had told him to stop was a man. His Honour, correctly, rejected that explanation as in any way diminishing the objective seriousness of the offence. His Honour also doubted, having regard to photographic evidence in the case, whether the applicant could have made such a mistake.

Approach of the sentencing judge to sentence

1. In sentencing an offender, the court is required to take into account relevant aggravating factors enumerated in the Crimes (Sentencing Procedure) Act , s 21A and relevant mitigating factors specified in s 21A(3).

1. So far as aggravating factors were relevant, the sentencing judge had regard to the applicant's record of previous convictions: see s 21A(2)(d); and the fact that the offence was committed while the applicant was on conditional liberty in relation to other offences: see s 21A(2)(j). In taking into account the applicant's lengthy criminal history, his Honour described the offences of violence of " a minor nature ". His Honour did not explain why he described those offences in that way, given that there were three convictions for assault occasioning actual bodily harm and a sentence of 6 months imprisonment had been imposed on the applicant in respect of one of those offences. Given that a term of imprisonment was imposed in respect of one of these offences, I consider that this finding was one of a number of findings that were favourable to the applicant.

1. Although the sentencing judge did not expressly identify the mitigating factors that he took into account it is apparent from his remarks that he took into account that the offence was not part of a planned or organised criminal activity: s 21A(3)(b); and that the applicant entered a plea of guilty: see s 21A(3)(k) and s 22.

1. It is also possible the provisions of s 21A(3)(c), that the offender was provoked by the victim, were relevant in this case, in the sense that Ms Kahui called the applicant an " idiot " and it appears that the applicant reacted to that comment. Having said that, the circumstances in which that remark was made were such that if there was any provocation it was of such a minimal nature as to be of no particular relevance. Indeed, in my opinion, his Honour could have considered, as an aggravating factor pursuant to s 21A(2)(l), that Ms Kahui was in a vulnerable position. Although she did not fall into the examples specified in s 21A(2)(l), she was employed to control traffic in respect of public roadworks being carried out by a private contractor. She was vulnerable in the sense that she was required to give traffic commands on a public roadway. However, as his Honour did not expressly take that factor into account, it is appropriate for the purposes of considering his Honour's sentencing exercise to put that to one side.

1. His Honour had regard to the applicant's personal circumstances, including his dysfunctional childhood, his drug and alcohol problems, his attempts at personal rehabilitation in the period prior to this offence and the recent diagnosis of a Post Traumatic Stress Disorder.

1. His Honour also took into account that the applicant suffered extra-curial punishment, in that he sustained injuries in the scuffle that ensued when he was chased by Ms Kahui's fellow workers. In this regard, his Honour again made favourable findings to the applicant, accepting that in addition to receiving black eyes and swollen lips, he received more serious injuries, requiring admission to hospital on two occasions in the week or two after the offence, because he was passing blood and bleeding from his anus. Although there was no medical evidence to support that those injuries had occurred in the scuffle, his Honour accepted that that was the cause.

1. Balanced against those favourable personal matters, his Honour considered that the applicant did not have a clear insight into his wrongdoing because, whilst having pleaded guilty, he sought to shift blame onto the victim, saying that she should not have " told him off ". This was an attitude that the applicant had maintained from the time he was arrested, through to the Probation and Parole officer who interviewed him for the purposes of the pre-sentence report and in his evidence in court.

1. His Honour accepted that the applicant suffers from a Post Traumatic Stress Disorder and that the disorder was an underlying factor in the commission of the present offence. However, notwithstanding that the applicant suffered from anxiety due to that condition, his Honour was satisfied that the applicant committed the offence with full knowledge of what he was doing and with full knowledge of the gravity of his actions.

1. His Honour found that the offence fell into the middle range of objective seriousness for such offences. That finding was made with the principle stated in Way in mind, namely, that the standard non-parole period for an offence, whilst not applicable where an offender pleads guilty, is nonetheless relevant as a reference point in determining the appropriate sentence to be imposed.

1. His Honour also made a finding of special circumstances and imposed a non parole period which was 62 per cent of the total sentence.

1. Having regard to all of those factors, his Honour sentenced the applicant to imprisonment, imposing a non-parole period of 2 years 6 months and a balance of term of 18 months, that is, a total sentence of 4 years.

Was the additional term imposed manifestly excessive?

1. The sole ground of appeal is that the sentence imposed by his Honour was manifestly excessive and in all circumstances another sentence was warranted in law: see the Criminal Appeal Act , s 6(3).

1. In his written submissions, the applicant drew the Court's attention to the fact that the nominal starting point prior to the taking account of a 10 per cent discount for the plea must have been 4 years 4 months and that that was simply too high. As I have already indicated, in his oral submissions he confirmed this in slightly different terms, namely, that 18 months was " a long time".

1. In my opinion, there is no basis for accepting that contention. His Honour found that the offence was in the mid-range of objective seriousness. Given the circumstances in which it occurred and the severity of the attack, there is no warrant to interfere with that finding. Once that is accepted, it is apparent that the sentence imposed by his Honour was within an appropriate sentencing discretion. As has been stated above, the standard non-parole period for this offence is 4 years. His Honour, correctly recognising that the standard non-parole period was only relevant as a reference point in the sentencing of a person who pleaded guilty, imposed a non-parole period of 2 years 6 months, 25 per cent lower than the standard non-parole period.

1. Given that the serious aggravating circumstances of the offence, most particularly the fact that the applicant has a long criminal history, including for the same offence, and that he committed this offence whilst on conditional liberty, including for the same offence, I am of the opinion that no other sentence was warranted in law. In reaching this conclusion, I have also taken into account that in imposing the non-parole period, his Honour made a finding of special circumstances. Accordingly, I propose that leave to appeal be granted, but that the appeal be dismissed.

1. I wish, however, to add the following. In his oral submissions, the applicant was polite and addressed the Court in a coherent, appropriate and helpful way. He informed the Court that he has moved location so as to take himself away from the influences that had apparently led him into trouble in the past. To the extent that the Court was able to gauge, he appeared genuinely hopeful of turning his life around. One of the purposes of a period of probation is to assist a person to do exactly that. The applicant is to be encouraged to treat the remaining 17 months of his probation as a source of support, not as something negative hanging around his neck, to assist him to maintain his present optimism, so that the way ahead for him will be positive and crime-free.

1. The orders I propose are:

1. Leave to appeal be granted;

2. Appeal dismissed.

1. HALL J : I agree with Beazley JA.

1. HARRISON J : I agree with Beazley JA and particularly wish to associate myself with her Honour's additional remarks at [36].

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Decision last updated: 20 July 2011