R v Barmby - [2007] SASC 354

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BARMBY
[2007] SASC 354
Judgment of The Honourable Justice Gray
2 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Application for permission to appeal against conviction and sentence - application for extension of time for permission to appeal against sentence - applicant found guilty by jury trial of causing grievous bodily harm with intent to do grievous bodily harm - applicant sentenced by District Court Judge to a period of imprisonment comprising head sentence of five years and seven months and non-parole period of two years and nine months - appeal on grounds that verdict was unsafe and unsatisfactory and sentence was manifestly excessive in all the circumstances - consideration of circumstances of delay in filing notice of appeal against sentence - delay was not substantial - explanation for delay was reasonable and not due to fault of applicant - consideration of matters raised by counsel for the applicant concerning evidence relevant to causation and intent - material before court gave rise to a reasonable possibility of an unsafe or unsatisfactory verdict - consideration of sentencing discretion - sentencing Judge had regard to all relevant matters in exercising sentencing discretion - not reasonably arguable that the sentence imposed was manifestly excessive.
Held: application for permission to appeal against conviction allowed - application for extension of time for permission to appeal against sentence granted - application for permission to appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 21, s 352, s 357 and s 367; Supreme Court Criminal Appeal Rules 1996 (SA) rule 4A, referred to.
Modra v Police [2006] SASC 52; R v Raad (2006) 15 VR 338; R v Blick (1999) 108 A Crim R 525; R v Collie [2007] SASC 293; R v Lennon (2003) 86 SASR 295; R v Shannon (1979) 21 SASR 442; R v Makevits [2006] SASC 73; R v Malesvic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Christiansen [2006] SASC 274; R v Allen [1999] SASC 346, considered.

R v BARMBY
[2007] SASC 354
Criminal
GRAY J.

This is an application for permission to appeal against conviction and sentence. The applicant also seeks an order extending the time for making the application to appeal against sentence.
Introduction
On 10 July 2007, the applicant, Mark Andrew Barmby, was convicted after trial by jury in the District Court of South Australia, of causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 21 of the Criminal Law Consolidation Act 1935 (SA). On 17 August 2007, the applicant was sentenced by a District Court judge to a period of imprisonment comprising a head sentence of five years and seven months and a non-parole period of two years and nine months, backdated to commence on 10 July 2007.
The conviction arose out of an incident on the evening of 8 December 2005 at the victim’s residence at Clearview. At the time of the incident the applicant and the victim had been living together in a de facto relationship. The prosecution evidence at trial was that the applicant and the victim had an altercation at the victim’s residence. As a result of the altercation, the accused assaulted the victim, causing her to suffer, most significantly, extensive facial injuries, a punctured and collapsed left lung, and multiple rib fractures. After the assault, the applicant arranged for his brother and family to attend the victim’s residence. The applicant’s nephew subsequently called an ambulance.
Upon her admission to hospital, the victim was appraised as suffering from life threatening injuries. The applicant was arrested at the hospital on 9 December 2005, when he attended to inquire as to the victim’s well being. After being arrested the applicant was conveyed to the City Watch House where he was interviewed. During the course of the interview, the applicant admitted striking the victim, but claimed he only struck her twice in response to the victim slapping him.
At trial there was no dispute that the victim sustained grievous bodily harm. The issues at trial were causation and intent.
The applicant’s rights of appeal are set out in section 352 of the Criminal Law Consolidation Act 1935 (SA). An appeal lies as of right on a question of law alone, and with leave on any other ground:
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
...
By reason of section 367 of the Act, applications for permission to appeal and for an extension of time within which to appeal may be heard and determined by a single judge of this Court. Section 367 is in the following terms:
The powers of the Full Court under this Act to give permission to appeal, to extend the time within which notice of appeal, or of an application for permission to appeal, may be given, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without permission, to admit an appellant to bail and to direct that time spent in custody by an appellant pending determination of an appeal be counted as part of a term of imprisonment may be exercised by any judge of the Supreme Court in the same manner as they may be exercised by the Full Court, and subject to the same provisions, but, if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court.
Section 357 of the Act provides, inter alia, that an application for permission to appeal must be made in accordance with the appropriate rules of court. The time fixed by Rule 4A of the Supreme Court Criminal Appeal Rules 1996 (SA) for the lodging of a notice of appeal or notice of application for leave to appeal is within 21 days of the date of conviction, sentence or a decision antecedent to trial:
4A(1) Every notice of appeal or notice of application for leave to appeal to the Full Court pursuant to Section 352(1)(a) and (b) of the Criminal Law Consolidation Act shall be filed with the Registrar within 21 days of the date of conviction, sentence or a decision antecedent to trial.
The applicant has lodged a notice of appeal against conviction and a notice of appeal against sentence. The notice of appeal against conviction dated 20 July 2007 and filed on 30 July 2007, relies upon the following ground of appeal:
The verdict is unsafe and unsatisfactory. The [applicant] will better particularise the grounds of appeal in due course.
The notice of appeal against sentence, dated and filed 28 September 2007, relies upon the following ground of appeal:
The sentence imposed was manifestly excessive in all of the circumstances.
The notice of appeal against sentence is three weeks out of time. The applicant seeks an order under section 357(2) of the Act extending the time for making the applications. The reasons for the delay in filing the notice of appeal against sentence, and the grounds upon which an extension of time is sought, are described in the notice of appeal as follows:
Initial advice given by counsel suggested that there was not much prospect for success on an appeal against sentence. On this advice an application was not lodged.
A second opinion was obtained from other counsel. This second opinion suggested that an appeal was arguable.
Time was then needed to obtain appropriate funding for the appeal.
The [applicant] has been in custody since the date of his conviction. This has made communicating with him and arranging funding difficult and time consuming. Any delay in filing the application for leave to appeal against sentence was not the fault of the [applicant].
Extension of Time
The relevant principles concerning the question of when an extension of time will be granted were recently reviewed by Besanko J in Modra v Police: [1]
The principles which govern an application for an extension of time have been discussed in a number of cases. It is sufficient to refer to Jackamarra v Krakouer (1998) 195 CLR 516; Gikas v Police (1999) 202 LSJS 301. In Gikas v Police (above) Lander J said (at 306):
In summary, any application for an extension of time within which to appeal must be supported by an explanation for the failure to comply with the time limits prescribed by the statute or any Rules of Court regulating the time limit. When the delay is very short and there is no obvious prejudice to any party the explanation need not be in great detail. Where the delay is lengthy or prejudice may be suffered by some other party then there is an obligation on the party seeking the extension of time to give a detailed explanation for the party’s failure to comply with the prescribed time limit.
When a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension of time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.
[emphasis added]
[1] Modra v Police [2006] SASC 52 at [32].
In my opinion, the delay in this case of three weeks is not substantial. I accept that the explanation for the delay as proffered in the notice of appeal is reasonable and satisfactory. It is relevant that the delay has not been caused through any fault of the applicant. In these circumstances, I consider that it is appropriate to grant an extension of time to appeal against sentence.
Permission to Appeal
On hearing an application for permission to appeal, the court has a discretion which is not be fettered by an inflexible rule.[2] As was recently confirmed by a majority of the Court of Appeal of Victoria in Raad,[3] as a general rule, a single Judge should grant permission if there is a reasonably arguable ground, even if he or she considers that it would probably not be made out when it was fully argued or that a court of three would think that, even though it was made out, no different sentence should be passed.[4] In articulating the rule in this way, the Court of Appeal emphasised the difference between the role of the single judge considering the application for leave and the role of the court of three hearing the appeal. In Blick,[5] Callaway JA observed:[6]
It would, for example, be quite wrong for a single judge to refuse leave solely because, although there was a reasonably arguable ground, he or she considered that it would probably not be made out when it was fully argued or that the court of three would think that no different sentence should be passed. That would be to pre-empt the appeal and to deny the applicant due process.
This is the approach that I respectfully propose to adopt.
[2]    R v Raad (2006) 15 VR 338 at [21].
[3]    R v Raad (2006) 15 VR 338.
[4]    R v Raad (2006) 15 VR 338 at [1], [21] to [23], [46] per Maxwell P, Callaway and Eames JJA.
[5]    R vBlick (1999) 108 A Crim R 525.
[6]    R v Blick (1999) 108 A Crim R 525 at [19].
Prior to the hearing of the application for permission to appeal, I received an outline of submissions on application for leave to appeal and sentence which particularised the grounds of appeal for permission to appeal conviction and sentence in greater detail.
Conviction
It is convenient to first deal with the application for permission to appeal against conviction. As stated earlier in these reasons, permission to appeal against conviction was sought on the ground that the guilty verdict was unsafe and unsatisfactory.
Counsel for the applicant acknowledged that, at trial, there was no dispute that the victim sustained grievous bodily harm, and that the contentious issues were causation and intent. In this context, counsel for the applicant submitted that the “crucial injury” suffered by the victim was the multiple rib fractures on the left-hand side of her body. The prosecution led direct evidence from the victim at trial that the victim, when the applicant was the only other person present, felt a forceful blow to her ribs or abdomen. The defence case was that the victim’s rib injuries could be explained by two alternative mechanisms. It was submitted that the rib injuries might have been caused by the victim, when intoxicated, falling over a coffee table some hours prior to the altercation with the applicant. Alternatively, it was submitted that the rib injuries might have been caused by the applicant kneeling on the victim’s chest immediately after the assault and in the context of his concern that the victim was unconscious.
In reliance upon these alternative explanations, counsel for the applicant drew attention to the following matters:
-The victim’s blood alcohol concentration on her admission to hospital was 0.38%;
-The victim’s memory of events was not very good and the victim could neither confirm nor deny the suggestion that she fell on a coffee table prior to the altercation with the applicant;
-The victim did not go to work on the day of the assault but had been at work the previous day;
-The evidence of Dr Pearce, the prosecution expert, in cross-examination on causation, conceded that there might be alternative explanations for the victim’s rib injuries;
-The evidence of the prosecution witness, Laura Percario seeing and speaking to the victim on the day of the assault, did not establish that the victim was either well or sober.
In consideration of these factors, counsel for the applicant submitted that the jury could not rely on the victim’s credibility or reliability in considering whether she had felt a definite blow to the chest, beyond reasonable doubt. In these circumstances it was said that the verdict was unsafe and unsatisfactory.
I accept counsel’s submissions that the matters outlined above are relevant to the issue of causation and intent. I am satisfied on the material before the Court that these matters give rise to a reasonably arguable ground that the verdict was unsafe or unsatisfactory. Accordingly, I grant leave to appeal.
Sentence
As stated earlier in these reasons, permission to appeal against sentence was sought on the ground that the head sentence of five years and seven months and a non-parole period of two years and nine months was manifestly excessive. The maximum penalty for the offence of causing grievous bodily harm with intent to do grievous bodily harm is life imprisonment.
Counsel for the applicant advanced two arguments in support of this ground. First, it was submitted that although the injuries sustained by the victim were extremely serious, the applicant had no relevant prior convictions, and no history of violence with the victim. Secondly, it was submitted that the penalty was considerably greater than that imposed in other like matters.
At the time of the sentencing, the applicant was 46 years of age and had a number of prior convictions for fraud and vehicle offences. Although the sentencing Judge did not consider these antecedents to be relevant to the sentencing task, the sentencing Judge took the view that the nature and circumstances of the subject offending were such that an immediate term of imprisonment was called for.
The sentencing Judge described the assault as “violent”, “brutal” and “vicious”, and considered that the offence was of a very serious nature:
Your attack was as cowardly as it was brutal. Your conduct that evening was shameful and it cannot be ignored that in being found guilty of this offence the jury has found that not only did you cause the very serious injuries suffered by [the victim], but you did so with the specific intention of causing her grievous bodily harm, that is really serious harm.
…
This is a very serious offence and your offending a very serious example of it.
The sentencing Judge recognised that the assault was not premeditated, but drew attention to the fact that the applicant was sober and should have been in complete control of his actions. This was contrasted with the victim, who his Honour described as “grossly intoxicated” and “completely defenceless” at the time of the incident.
The sentencing Judge accepted that the applicant was very remorseful after the incident and appeared genuinely concerned for the victim’s welfare. It was relevant, however, that the applicant did not accept the jury finding as to the full extent and nature of his conduct and did not therefore show full contrition and acceptance of his behaviour. This meant that the sentencing Judge felt unable to give the applicant as much credit as he might otherwise have given.
The sentencing Judge had regard to the applicant’s psychological report and personal history. The Judge acknowledged that the applicant had been suffering emotional and physical stress at the time of the incident, but considered that this did not excuse the applicant’s violent behaviour.
It appears from the sentencing remarks that perhaps the most significant factor relevant to the exercise of the sentencing Judge’s discretion was the importance of general deterrence. In this regard, the sentencing Judge observed:
The courts in this State have consistently maintained that they must do all that can be done to protect women from violence by men, including, of course, violence within a domestic relationship. Our community quite rightly demands that all people, but particularly the vulnerable, be protected from violent conduct and that the court should impose a sentence that will assist in deterring not just the individual offender but also other potential offenders.
… general deterrence is a most significant factor when sentencing for this offence in the context of a domestic relationship.
The sentencing Judge started with a notional sentence of imprisonment of six years. The sentencing Judge made a reduction of five months from the sentence in recognition of seven days spent in prison, and 540 days spent on home detention bail. In fixing the non-parole period, the sentencing Judge had regard to the minimum period required to satisfy the punitive, deterrent and preventive aspects of the applicant’s punishment. The sentencing Judge considered that the applicant had good prospects for rehabilitation if the applicant took advantage of anger management assistance programs available to him.
Counsel for the applicant referred me to Collie[7] and Lennon.[8] Both cases concerned convictions for offences contrary to section 21 of the Criminal Law Consolidation Act. In Collie, a head sentence of imprisonment for three years and four months with a non-parole period of eighteen months was imposed. In Lennon, a head sentence of imprisonment for four years with a non-parole period of 20 months was imposed. It is relevant in Lennon that the defendant pleaded guilty to the charge.
[7] R v Collie [2007] SASC 293.
[8] R v Lennon (2003) 86 SASR 295.

Although these decisions provide some guidance, as was recognised by King CJ in Shannon,[9] the sentencing judge possesses a discretion of great width and it is improper to seek to define or prescribe the area in which that discretion is to operate. The observations of Layton J in Makevits[10] are also relevant. When dealing with the offence of wounding with intent to do grievous bodily harm, her Honour observed in terms relevant to the present appeal:[11]
Both counsel for the DPP and counsel for the respondent referred the Court to sentences imposed in other cases for the offence of wounding with intent to do grievous bodily harm. As the Court has observed on previous occasions, such comparisons are of limited assistance. The circumstances of the offending vary greatly. The personal circumstances of the offender also vary significantly. There is no standard punishment for this offending. In cases such as this in which a knife is used with intention to do grievous bodily harm, a lengthy custodial sentence must be considered. Sentences will vary according to the circumstances of the case such as the wounding, the use of a weapon, the type of weapon and the injury sustained.
[9] R v Shannon (1979) 21 SASR 442 at 446.
[10] R v Makevits [2006] SASC 73.
[11] R v Makevits [2006] SASC 73 at [44].
As earlier observed, during the course of submissions attention was drawn to the length of time spent by the applicant on home detention bail. Initially this involved electronic monitoring. This requirement was removed after a period of 40 days. However, it is clear that the applicant’s freedom was materially restricted. In light of the length of time spent by the applicant on home detention bail, the sentencing Judge allowed a modest reduction of five months from the head sentence. This reduction also took into account seven days spent by the applicant in custody.
It is well established that the decision whether to give credit for time spent on home detention custody is a discretionary matter.[12] There is no requirement for the sentencing Judge to deduct a specific period from the head sentence or non parole period to allow for home detention bail, and it may be discounted where it was imposed after a defendant had breached other bail conditions.[13]
[12] R v Malesvic (1999) 204 LSJS 32; Kells v Police [2007] SASC 224.
[13] R v Christiansen [2006] SASC 274. See also R v Allen [1999] SASC 346.
As earlier observed, although the applicant had no relevant prior convictions, and no history of violence toward the victim, the applicant’s conduct was violent and brutal. He intentionally caused very serious injuries to the victim. Given the maximum penalty for this offence, the head sentence and non-parole period were well within the Judge’s discretion. As outlined above, the Judge had regard to all relevant matters in exercising his sentencing discretion. I do not consider that it is reasonably arguable that the sentence imposed is manifestly excessive. Accordingly permission to appeal against sentence is not granted.
Conclusion
I make the following orders:
-Application for permission to appeal against conviction is allowed.
-Application for an extension of time within which to bring an application for permission to appeal is allowed.
-Application for permission to appeal against sentence is dismissed.