Porter v R

[2015] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Porter v R [2015] NSWCCA 59
Hearing dates:	2 April 2015
Decision date:	10 April 2015
Before:	Simpson J at [1] Harrison J at [7] Adamson J at [8]
Decision:	(1) Grant application for leave to appeal. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence for wounding with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 (NSW) – evidence by applicant that he was shot at with air rifle – sentencing judge not obliged to accept applicant’s evidence – infelicitous and gratuitous observation by sentencing judge did not, on fair reading of remarks on sentence, reveal error in approach to relevance of decisions of Court of Criminal Appeal – no error demonstrated in taking into account general deterrence when applicant has established mental illness – depends on facts and circumstances – no manifest excess demonstrated PRACTICE AND PROCEDURE – importance of identifying facts that are agreed for the purposes of sentencing and distinguishing them from facts in respect of which there is a dispute to be resolved by evidence adduced at the sentence hearing
Legislation Cited:	Crimes Act 1900 (NSW), s 33(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32, 44(2)
Cases Cited:	Chen v R [2011] NSWCCA 85 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Engert (1995) 84 A Crim R 67 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Rudd [2010] NSWCCA 71
Category:	Principal judgment
Parties:	Brogan Porter (Applicant) Regina (Respondent)
Representation:	Counsel: A Francis (Applicant) N Williams (Respondent) Solicitors:
File Number(s):	2013/89311
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 December 2013 Before: Garling ADCJ File Number(s): 2013/89311

Judgment

1. SIMPSON J: I have read in draft the judgment of Adamson J. I agree with the orders proposed by her Honour, and with her reasons. I wish only to add briefly to the reasons given in relation to Ground 2. This ground arises out of a remark made by the sentencing judge, quoted at [32] of the draft judgment of Adamson J.

2. The sentencing judge referred to a previous decision of this Court (Chen v R [2011] NSWCCA 85) which had been cited to him, and stated that he was bound to follow it. Precisely what he meant by that is unclear. Of course, a District Court judge is bound to follow statements of principle made in this Court. But his Honour did not refer to any statement of principle in Chen by which he considered himself bound, and which he therefore felt obliged to follow. A reading of Chen shows that, to the extent that there are statements of principle, they are orthodox and well known.

3. However, the offender in Chen was sentenced to imprisonment for 5 years with a non-parole period of 3 years. That is the sentence ultimately imposed upon the applicant. The remark, taken in isolation from other remarks, but together with the sentence, is apt to give the impression that his Honour felt he was bound to impose the sentence that had been imposed in Chen. If that were what happened, error would be revealed.

4. Perusal of the transcript of the discussion prior to sentencing shows that this was not the case. His Honour was shown a decision of this Court in R v Rudd [2010] NSWCCA 71, about which he expressed the opinion that the sentence imposed was unduly lenient. He was then handed the judgment in Chen, and observed that the sentence was “five and three”. He confirmed that an appeal from that sentence had been dismissed. He then turned his attention to statistics (presumably those prepared by the Judicial Commission of NSW) and observed that 96 per cent of offenders convicted of the offence to which the applicant pleaded guilty would be sentenced to imprisonment, and that the most common sentence, applicable to 26 per cent of offenders, was 6 years. He said that he did not look at the non-parole periods. He said:

“But the most common sentence is six years and then there’s four years, five years, seven years, whatever.

…

I think they go between two years and 16 years so that’s a pretty wide range.”

5. He agreed with the observation of counsel for the applicant that the offence was “a wide ranging” one.

6. This discussion indicates, in my opinion, that the impression that his Honour felt obliged to impose the sentence that was imposed in Chen is incorrect. However, it is understandable from the manner in which the remarks on sentence were framed.

7. HARRISON J: I agree with Adamson J.

8. ADAMSON J: The applicant seeks leave to appeal against the sentence imposed by Garling ADCJ in the District Court at Nowra on 6 December 2013 following his plea of guilty to the offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). Two matters were taken into account on a Form 1 (pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW)): driving an uninsured vehicle and using an unregistered vehicle. The applicant was sentenced to imprisonment for five years commencing on 23 June 2013, with a non-parole period of three years.

The grounds of appeal

9. The grounds of appeal, if leave is granted are:

1   The sentencing judge erred by failing to make critical factual findings about which there was unchallenged evidence by the applicant.

2.   The sentencing judge erred in the conclusion that he was bound to follow the decision of this Court in Chen v R [2011] NSWCCA 85.

3.   The sentencing judge erred in the failure to have regard to those principles which attach to sentencing a person with a mental illness.

4.   The sentence is manifestly excessive in the unusual circumstances of this case.

The facts

10. The following narrative is derived from the Agreed Facts which formed the basis of the plea and were tendered on sentence. Although there are issues about the extent to which all facts were agreed, it is reasonably clear that the following facts were agreed, except where specifically noted to the contrary.

11. The applicant and the victim’s son, Jake Stannard, had been good friends until about mid-2012. On 13 January 2013 a number of motorcycles had been stolen from the property at Falls Creek where Jake lived with his parents, the victim (Michael Stannard) and his wife, Kerry. Jake suspected the applicant’s involvement and informed police where the motorcycles might be located. On 13 February 2013, the applicant was charged with their theft. The animosity between the applicant and Jake grew.

12. At about 1.45am on Sunday 24 March 2013 Jake was home with his parents and his girlfriend. His parents were woken by someone knocking at the front door and went out to investigate. Jake was woken by his girlfriend who heard noises outside. Mrs Stannard came to the front door ahead of her husband, Mr Stannard (the victim). She recognised the applicant, who said, “Where’s Sean and Josh. . . I suppose Jake’s in on it too?” She told him that Sean and Josh were not there and asked him what he was doing there. By this time the victim had come outside onto the verandah and heard his wife talking to the applicant, whom he also recognised. The victim walked down from the verandah to the grass where the applicant was standing. The applicant noticed that the victim was holding something behind his back and asked what it was.

13. By this time, Mrs Stannard was concerned enough to return inside the house and call Triple-0. The applicant told that victim that there was nothing behind his back, at which point the victim attempted to wrestle the applicant to the ground to remove whatever was behind his back. The applicant pushed the victim to the ground. When the victim saw that the applicant had a machete in his hand he raised his left arm to try to protect his head. The applicant struck the victim’s left arm with the machete.

14. In the meantime, Jake came outside and saw the applicant. He ran back inside to grab something, which the Crown contended was an old wooden axe handle and the applicant said was an air rifle. By the time Jake came outside again, the applicant had pushed Mr Stannard to the ground. Jake saw the applicant strike his father with the machete. The applicant immediately left the scene on his motorcycle but did not illuminate its headlights.

15. After a police chase, the applicant was apprehended and arrested about 200ms from his home in Worrigee. He had a backpack which contained a machete. The motor cycle was unregistered and uninsured. The applicant’s blood alcohol reading was .066%.

16. The applicant agreed to take part in an electronically recorded interview with police during which he admitted going to the Stannard’s property with a machete, which he said was for his protection. He refused to answer questions relating to the assault. He admitted that he was the rider of the motorcycle but said that he did not realise that the police were pursuing him.

The sentence hearing

17. The applicant’s counsel, Mr Ford, sought that the sentence hearing be adjourned for the sole purpose of obtaining a further expert report relating to the applicant’s mild intellectual disability, which was referred to in a report of Dr Furst, a psychiatrist, which the applicant proposed to tender. His Honour declined the adjournment. No complaint is made about this ruling.

18. Mr Ford indicated that there was also an outstanding issue relating to provocation and that the applicant contended that threats had been made from the “victim’s side”, by the victim’s son. He also identified an “issue in relation to the firearm”. The Crown informed the sentencing judge that, in his record of interview, the applicant said that the victim’s son came out with an air rifle and that he fired three shots. His Honour indicated that any such issues could be resolved by calling the applicant and tendering the record of interview. The Crown then informed the sentencing judge that no shots were heard on the recording of the Triple-0 call. His Honour then said that such matters could be resolved by evidence adduced on the sentence hearing.

19. The factual issues having been referred to, the Crown tendered the Crown Sentencing Summary, which included a document entitled “Statement of Agreed Facts”; photographs of the victim’s injuries, the machete and the backpack; the applicant’s criminal and custodial history as well as material relating to the injuries inflicted on the victim. The expert certificate of Dr Swinton stated that the victim sustained an 8cm laceration to the left upper arm, which was debrided and sutured. The Crown also tendered a Form 1 and asked the Court to take the matters on Form 1 into account when sentencing the applicant. The matters listed on the Form 1 were driving an uninsured vehicle and using an unregistered vehicle. None of this material was objected to.

20. The applicant’s counsel tendered the report of Dr Furst dated 14 November 2013. Dr Furst recorded that the applicant was a 21-year old Aboriginal male who was unemployed and, at the time of his arrest, lived with his former fiancée and her brother. His parents separated when he was 8 or 9 years old. He missed some of his schooling in Years 9 and 10 because he had learning difficulties, poor concentration and apparent Attention Deficit Hyperactivity Disorder, for which he was treated with medication. He had difficulties at school and was suspended several times. He suffered from depression and anxiety. He witnessed his father being assaulted when he was about 13, which caused him to avoid the scene, and also to avoid going out. Dr Furst considered that the symptoms that followed this incident (hyper-vigilance, high levels of anxiety and avoidance, re-experiencing phenomena, depression, substance abuse and social maladjustment) were consistent with the applicant’s having suffered post-traumatic stress disorder.

21. The applicant’s paternal uncle and aunt were murdered when he was about 12-13 years old. His maternal uncle was murdered in Melbourne with a machete when the applicant was 18 years old. The applicant told Dr Furst that these losses “tore him apart”. The applicant takes Zoloft and Seroquel and denied drinking alcohol regularly or using illicit drugs at all.

22. Dr Furst considered the applicant to meet the diagnostic criteria for post-traumatic stress disorder, chronic dysthymia, attention deficit hyperactivity disorder and possible mild intellectual disability. He considered that these conditions “will probably make a custodial sentence more onerous for him than the average inmate”. Dr Furst also considered that his post-traumatic stress disorder, low level of intellectual function and general lack of maturity were “all mitigating factors that probably prevented him from properly considering and choosing an alternative course of action” on the night of the assault. Dr Furst opined:

“[the applicant’s] PTSD and past experiences of witnessing his father being knocked unconscious and having three close family members murdered most likely amplified the risk he perceived to his family. . . when he chose the course of action he embarked upon, confronting and attacking the victim with a machete”.

23. Dr Furst considered the applicant to have “positive prospects of being successfully rehabilitated”.

24. After a short adjournment, Mr Ford called the applicant who verified the history he had given to Dr Furst. The applicant gave evidence of threats being made to him by Jake and the victim. The applicant said that he had been told by a friend that he had received a message from Jake and the victim that they were at the Husky pub and wanted to fight them. The applicant went home to Worrigee that evening and subsequently went out to the property where the Stannards lived. He took a large machete with him. He said that he took it with him because he knew that the Stannards had a small calibre air rifle and he wanted to have something with which to protect himself.

25. The applicant’s evidence of what occurred at the Stannards premises was as follows:

Q.   So when you went there what happened?

A.   I got there and the, I think it was the far right room, it was all the way at the right end of the house which I believe was Jake’s bedroom the light, there was a small light on in the room so I went and I knocked on the window there and there wasn’t any answer so I knocked on the door, the front door and then I went back down on the grass out the front and Jake’s mum come out and was wondering what was going on, who it was and stuff like that. Soon after that Michael, Jake’s father come out the front door and come running down the stairs and he got real close at first and then he was saying what’s going on and stuff like that and then got up a bit closer and he started to have a bit of a push and shove and he grabbed a hold of me like he we trying to pull me down sort of thing and kept yelling out to Jake that was coming out the door as this was happening to go and get it and that’s all he kept yelling out was, “Get it Jake”. Soon after that was when Jake come out the front doors the rifle, after Jake had fired one shot at me I got the machete from behind my back, it was in my bag, I hit Michael in the left arm so that he’d let go of me.

Q.   What did you do then?

A.   There was another two shots fired at me, one when I was running back down the driveway and one when I was putting my helmet on to get back on my motorbike. From there, yeah I rode back to Worrigee where I was picked up.

26. The applicant was cross-examined about having stolen motorcycles from the family, which was part of the conflict between himself and the Stannard family. It was put to him that Jake did not come out with an air rifle, but he disagreed. The applicant agreed he had listened to the Triple-0 recording in the brief of evidence and that he was unable to hear any rifle shots on the recording. He agreed that the whole incident took only a few minutes.

27. The applicant’s mother, Veronica Gersbach, was also called. She gave evidence that the applicant and Jake had been to kindergarten together but had fallen out. Ms Gersbach was concerned that threats were being made to her son and went to the police station at Nowra in about late January 2013 to report the threats. She was told that the police could not do anything unless something had actually happened. In cross-examination she agreed that there was harassment on both sides between Jake and the applicant.

The remarks on sentence

28. His Honour recounted the facts derived from the Agreed Facts, which are set out above. His Honour noted that the applicant had, at the time of the offence, no criminal record but has since been convicted of various matters for which he was sentenced to six months imprisonment. The sentencing judge noted the matters on the Form 1. His Honour found that the applicant was entitled to a 25% discount by reason of his early plea of guilty. His Honour referred to the report of Dr Furst and summarised the main findings as well as the effect on the applicant of seeing his father assaulted.

29. His Honour addressed the principal factual issue between the Crown and the accused in the following terms:

“The offender told me a slightly different version of what he said happened on this night. He said he had been at a pub/hotel with some mates having some drinks. There had been an exchange of text messages between himself and at least one or more of the people he eventually got into strife with. They had been threatening each other in effect, he said he had had problems with these people for some time and for some reason, I do not think he could explain it, he arms himself and goes to the property in the early hours of the morning. It is very hard to understand why he might have done that because he was liable to have got a hiding for being on their property but he did. His alcohol intake was not that great because we know what his reading was a short time afterwards but apparently he went there, he gives a slightly different version of what happened. He believes there was an air rifle involved, some shots fired. None of that appears in the facts and I am assured by the Crown that if you listen to the triple-0 call which is going on at the time all this is happening you do not hear any shots. Be that as it may I do not think it affects the sentence too much.

But I can be satisfied that this all occurred in the context of an ongoing dispute. I can deal with it on the basis that he should not have gone to the property. He probably did take the machete to protect himself. I do not believe it was planned. I believe that what happened was he being there that the victim approached him and he struck out hitting the victim on the arm and causing injury.”

30. His Honour found the offence to be “most serious” and said:

“To wound someone in this way is extremely serious.”

31. The following passage from his Honour’s reasons indicate that general and specific deterrence were taken into account:

“He has got to be sentenced in such a way that he understands he cannot do this and that others in the community understand they cannot act in this way.”

32. His Honour reviewed the statistics and referred in the following terms to a decision of this Court, Chen v R, on which Mr Ford had relied in submissions:

“I have been given a case of Chen v R 13 April 2011, despite the fact it is a decision of my brother’s I am still bound to follow it, I do not mean my brother judge I mean my brother, in which there was a somewhat similar sort of altercation and that person was sentenced to a similar sentence to what I am going to sentence this man to, not because of that case but because that sort of shows where the Court of Criminal Appeal are thinking about in these cases. I would have sentenced this man to a much higher sentence until I became more aware of what was going on in the background, in other words it is not someone deliberately going out to use this weapon to injure someone, it happened in the light of this ongoing dispute and obviously a somewhat difficult situation.”

33. The sentence imposed of five years with a three year non-parole period reflected his Honour’s finding of special circumstances, the ratio of the non-parole period to the total term having been adjusted from the statutory ratio of 75% (s 44(2) of the Crimes (Sentencing Procedure) Act) to 60%.

The application for leave to appeal against sentence

Ground 1: failure to accept unchallenged evidence of the applicant

34. Ms Francis, who appeared on behalf of the applicant, submitted that his Honour was bound to make a finding on the question whether Jake fired the air rifle and that the applicant’s account ought to have been accepted as it was relevantly uncontroverted.

35. The sentencing judge was not entitled to take facts into account in a way that was adverse to the interests of the offender unless the facts have been established beyond reasonable doubt, but if there were circumstances to be taken into account in favour of the offender it was sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

36. It follows from this principle that the sentencing judge would have been entitled to take into account that Jake fired the air rifle if his Honour had been satisfied on the balance of probabilities that this is what actually occurred. However, his Honour was not obliged to accept the applicant’s account, merely because neither Jake nor the victim nor the victim’s wife was called to controvert it. Although Ms Francis described the applicant’s evidence as “unchallenged” it was more correctly described as “uncontroverted” since it was put to the applicant by the Crown in cross-examination at the sentence hearing that no shots had been fired and the concession elicited from the applicant (for what it was worth) that the shots could not be heard on the recording of the Triple-0 call.

37. The trial judge’s reasons indicate that his Honour accepted, on the balance of probabilities, that the applicant believed that the air rifle was involved and also believed that some shots were fired. This finding, which was in the applicant’s favour, was open to his Honour. The applicant has not demonstrated any error in the sentencing judge’s approach.

38. Furthermore it is difficult to see what difference it would have made if the finding had been made that Jake had fired the air rifle. Jake had been woken in the early hours of the morning by the applicant, with whom he had an ongoing dispute. He could see his father on the lawn with the applicant. Jake must have been concerned for his father’s welfare. I do not accept that Jake’s conduct, even if he had discharged the air rifle, could amount to any relevant provocation that would mitigate the seriousness of the applicant’s assault of Jake’s father. It was, in my view, open to the sentencing judge to consider that the actual facts relating to the air rifle were not particularly material to the overall sentence. Moreover, as referred to above, the finding that the sentencing judge made (that the applicant believed that the air rifle had been discharged) was in the applicant’s favour.

39. Where there are agreed facts for sentence it is desirable that the statement of agreed facts be signed by or on behalf of the offender and the Crown. Where there are disputed facts it is necessary that any dispute be described with some precision so that it can be recorded on the transcript, if not in a document. Any evidence relating to the disputed factual issue can then be adduced and the issue determined, if required, by the sentencing judge in the remarks on sentence. In the present case, this course was not adopted. Although a dispute was flagged by Mr Ford, it was not described with precision. The statement of Agreed Facts was neither signed nor objected to. However, it was, in some respects, irreconcilable with the applicant’s evidence. For example, the so-called Agreed Facts recorded that Jake went inside to get an old wooden axe handle when this was plainly not agreed.

40. Nonetheless, for the reasons given above in the narrative of the sentence hearing, I consider it to be reasonably clear that there was agreement as to the facts on the basis of which the applicant was to be sentenced, with one exception: whether Jake came out of the house with an air rifle and whether it was fired. The present case illustrates the importance of identifying agreed facts for the purposes of sentencing. Even if negotiations about the facts are continuing up until the time of the hearing, a typed draft brought to Court should be amended, by hand, if need be, and the changes initialled so as not to delay the proceedings. If this procedure is adopted, the sentencing judge and, in the event of an application for leave to appeal, this Court are in a position to know the extent of the agreement as to the facts.

Ground 2: the sentencing judge erred in the conclusion that he was bound to follow Chen v R [2011] NSWCCA 85

41. His Honour, in the course of the remarks on sentence, referred to the decision of this Court in Chen v R. His Honour also mentioned the fact that his natural brother was a member of the Court that determined the appeal. His Honour also highlighted the double-meaning of the word “brother” which embraces not only a natural brother, but also another judge, who is a colleague. In the present case, Garling J was a brother in both respects to Garling ADCJ. His Honour’s comments, though gratuitous, do not, in my view, reveal error and amount to no more than a relatively unguarded but impromptu irrelevant remark such as might insinuate itself into reasons given ex tempore, where the judicial officer does not have the luxury of time that would have afforded an opportunity to remove it. Any impression of error that these comments may have created was, in my view, dispelled by the following words: “not because of that case but because that sort of shows where the Court of Criminal Appeal are thinking about in these cases”.

42. Ms Francis also submitted that Mr Ford had drawn the sentencing judge’s attention to R v Chen to provide an example of what Mr Ford described as a “much more serious matter” in which a sentence of five years with a three year non-parole period was imposed. The purpose for which Mr Ford relied on R v Chen appeared from the transcript.

43. The use that can be made of other cases is limited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1, per Simpson J at [303]-[305], cited with approval by the plurality in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]. I do not consider that his Honour’s remarks on sentence, fairly read, disclose any lack of appreciation of the use to which R v Chen could be put. Error cannot be demonstrated merely by comparing one decision with another and trying to reconcile them as if one were a benchmark and the other required to be measured accordingly.

Ground 3: the sentencing judge failed to have regard to the principles which apply to sentencing persons with a mental illness

44. The applicant submitted:

“The complex considerations which warranted particular leniency in this case were the coincidence of the applicant’s youth, his tragic personal history and the resultant psychological frailties of a very young man with no tendencies towards violence.”

45. A mental condition cannot be regarded as either mitigating or aggravating since it depends on the circumstances: it may, for example, diminish moral culpability and lessen the requirement for general deterrence but may increase the risk of future offending: R v Engert (1995) 84 A Crim R 67 per Gleeson CJ.

46. It may be accepted that the applicant was young, had a very sad history and background and had been traumatised by the violence suffered by members of his family, and in particular the assault on his father and the murder of three of his close relatives. The sentencing judge accepted the applicant’s resultant psychological frailties and that he had no relevant criminal record prior to the offence for which he was to be sentenced. Nonetheless, his Honour was bound to take into account the matters listed in s 3A of the Crimes (Sentencing Procedure) Act including: punishment (s 3A(a)), general and specific deterrence (s 3A(b)) and the protection of the community (s 3A(c)).

47. Furthermore the maximum penalty for the offence is 25 years and the standard non-parole period is seven years. These are the relevant guideposts, which his Honour was obliged to take into account: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

48. I am not persuaded that ground 3 has been made out.

Ground 4: the sentence is manifestly excessive in the unusual circumstances of the present case

49. The applicant relied on the following factual findings in support of the submission that the sentence was manifestly excessive:

“the offence occurred in the context of an ‘ongoing dispute and obviously a somewhat difficult situation’;

the applicant ‘probably’ took the machete to protect himself;

the offence was not planned;

the applicant did not go to the property with the intention of injuring anyone;

he was remorseful and had good prospects of rehabilitation;

there were special circumstances and

the injuries had resolved at the time of sentencing.”

50. For the reasons given above, I am not satisfied that any of the specific grounds (1, 2 or 3) have been made out. However, manifest excess is a conclusion and does not require the identification of a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].

51. Although the applicant’s subjective circumstances revealed substantial misfortune and hardship, the objective circumstances of the offence were serious. The applicant went to a residential property at one o’clock in the morning to disturb the occupants. He carried a machete in his back pack. Although his actions appeared to be in furtherance of an existing dispute, he was responsible for escalating the dispute on the night. The victim was a householder who was disturbed in the middle of the night by someone who was apparently antagonistic. When the victim attempted to disable the applicant, he was stabbed with a machete and suffered injuries which, though substantial, might have been even more serious having regard to the weapon used to inflict them. In these circumstances I do not consider the sentence imposed on the applicant to be manifestly excessive.

Proposed orders

52. I propose the following orders:

1. Grant application for leave to appeal.

2. Appeal dismissed.

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Decision last updated: 10 April 2015