R v Campbell

[1999] NSWCCA 76

CITATION:	Regina v Campbell [1999] NSWCCA 76
FILE NUMBER(S):	CCA 60330/98
HEARING DATE(S):	12/4/99
JUDGMENT DATE:	12 April 1999
PARTIES :	Regina Graham Anthony Campbell
JUDGMENT OF:	Grove J at 28; Kirby J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/9163
LOWER COURT JUDICIAL OFFICER:	Nader ADCJ

COUNSEL:	P G Ingram (Cr) J S Stratton (App)
SOLICITORS:	R Gray (Cr) T A Murphy (App)
CATCHWORDS:	CRIMINAL LAW; Practice and Procedure; Sentence Appeal
ACTS CITED:	Crimes Act 1900
CASES CITED:	GDP v R (1991) 53 A Crim R 112 G S & T v R (CCA, unreported, 12/10/89 R v Eastway (CCA, unreported, 19/5/92)
DECISION:	Appeal Allowed

IN THE COURT OF

CRIMINAL APPEAL

060330/98


GROVE J
KIRBY J

Monday 12 April 1999

REGINA v Graham Anthony CAMPBELL

JUDGMENT

1 KIRBY J: The applicant, Graham Anthony Campbell, seeks leave to appeal against the sentence imposed on 1 June 1998 by his Honour Acting Judge Nader.
2 Mr Campbell was charged under s35(b) of the Crimes Act 1900, with having maliciously inflicted grievous bodily harm. He pleaded guilty to that charge.
3 At the time the plea was entered, the applicant asked his Honour to take account of two matters on Form 1, they being drive an unregistered motor vehicle, and drive an uninsured motor vehicle.
4 I should briefly describe the circumstances giving rise to the charge. The applicant was born on 25 June 1976. The offence occurred on 9 March 1997, so that the applicant was then a man aged 20 years. He attended a birthday party at Caves Beach. He was affected by alcohol and drugs. The drugs included marijuana and heroin. The party concluded at about 1.00am. Those who had been at the party then drifted to a car park. Whilst at the car park a fight broke out between the applicant and a person, Craig Mitchell.
5 Craig Mitchell, in his statement to the police, acknowledged that he was well affected by alcohol. Although his Honour made no specific finding, it rather appears that, in the initial incident at the car park, Craig Mitchell may have been the aggressor.
6 The two men were separated by friends. They later shook hands. The third person, one gathers a friend of the applicant, then offered a ride to both men. Mr Mitchell got in the front of the vehicle, and Mr Campbell sat in the rear. The applicant, when interviewed by the police, asserted that Craig Mitchell, whilst in the vehicle, leant back and struck him with his elbow in the face. The driver of the vehicle, who made a statement to the police, provides no support for that assertion, though he may have been distracted. His Honour did not advert to this aspect in his remarks on sentence. Whether it be right or wrong, it plainly provides no excuse for what followed.
7 The applicant repeatedly struck Mr Mitchell on the head with a tyre lever, or steel rod. It would appear that the victim was then pushed from the vehicle, one gathers whilst it was stationary. He was left unconscious, and bleeding by the side of the road.
8 The victim had little recollection of the assault. He was taken by ambulance to the John Hunter Hospital, where he was found to have a depressed right parietal compound skull fracture, and other fractures. He had concussion, and multiple scalp lacerations. He was conscious by the time of his admission to hospital.
9 His Honour described the assault as a cruel and vicious attack, as clearly it was. His Honour added these words,
"...so objectively speaking it was a very serious matter. So when I pass this sentence, which may seem severe, having regard to the facts of the offence itself, it was in objective terms, as I see it, very close to one of those very serious manifestations of a crime which would carry something approaching the maximum term."
10 The maximum penalty for maliciously inflicting grievous bodily harm is seven years penal servitude.
11 When the matter first came before his Honour on 1 August 1997, there was an application for what is termed a Griffiths remand; that is, an adjournment of the sentencing process to enable Mr Campbell to undergo rehabilitation for drugs and alcohol. He had, at that time, been accepted by the Salvation Army in their institution known as Miracle Haven.
12 The matter came back before his Honour on 5 December 1997, and 26 March 1998. By the time the matter proceeded on 1 June 1998, Mr Campbell had successfully completed his rehabilitation. He was given high praise by the Salvation Army. I should interpolate that an affidavit has been filed in court today, and repeats that praise. Mr Campbell has been used in a teaching role, one gathers, in one of the Salvation Army's programmes.
13 His Honour accepted that the applicant had significantly changed his attitude, and that he was genuinely contrite. Though he had been convicted as a child of some offences, his record was not significant, and it did not include any crimes of violence.
14 His Honour ultimately fixed a sentence of three years. He found special circumstances, namely, the need for further rehabilitation of the applicant. He divided the term into a minimum term of 12 months and an additional term of two years, with an adjustment to each period of 46 days, to take account of some time in custody.
15 The applicant, through counsel, identified a number of matters where his Honour was said to be in error. They were first, that his Honour did not give appropriate recognition to the plea of guilty and the fact that it had been entered at the first opportunity. Secondly, that his Honour was wrong to characterise the offence as being close to the worst class of offence under the section. Thirdly, that in dealing with the issue of general deterrence, his Honour had insufficient regard to the youth of the applicant. Finally, that the applicant was entitled to have taken into account, when computing the minimum term, the year that he had spent in rehabilitation.
16 Dealing with the first matter, the plea of guilty, there are two aspects to it. The applicant is entitled to have the sentence, which may otherwise be imposed, moderated by reason of that plea. The plea spares the victim the ordeal of giving evidence, and saves the State the cost of a trial. The plea is also some evidence of contrition. If the plea is entered sooner rather than later, the demonstration of contrition is the more persuasive. Here, his Honour expressly referred to the plea of guilty and said that he took it into account. He also accepted that the applicant had exhibited contrition. I can find no error, therefore, on this aspect.
17 Moving to the second matter, the offence appears to have been characterised by his Honour as amongst the worst examples of offences of this kind. There is no question that the offence was extremely serious. It resulted in significant injuries to the victim. However, it is probably overstating the matter to describe it as amongst the worst examples of offences under this section.
18 The third ground is concerned with the concept of general deterrence in the context of a young offender. His Honour referred to the public's interest in being protected from violent crime, and described the concept of general deterrence, specific deterrence, or personal deterrence. His Honour said this, and I am quoting from the remarks on sentence:
"I do not believe that any significant element of personal deterrent is required in this case. I think in respect of personal deterrence, the public interest will be satisfied to know what has been said in this Court by members of the Salvation Army and in particular, the officer who has given evidence today and I find it impossible to skirt so easily over the question of general deterrence."
19 Having referred to the plea of guilty and the time in custody, his Honour then made the following remark:
"I am also aware that it has been suggested that if he goes to gaol he may relapse, as it were, in his character, back to what he was before, because of the influence of other prisoners and the availability of drugs. I know that this happens and it is not an easy thing to do to balance all these factors, but I think the overwhelming and dominant matter in this case is the fact of general deterrence."
20 The applicant has drawn attention to GDP v R ((1991) 53 A Crim R 112), concerning an offender somewhat younger than the applicant. The case is a convenient summary of the principles to be applied. Matthews J with whom Gleeson CJ and Samuels JA agreed, drew attention to the unreported judgment of Yeldham J in R v Wilcox , where his Honour said this at 116:
"In the case of a youthful offender... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation."
21 That is not to say that one can overlook the objective seriousness of the offence.
22 In G S & T v R (CCA, unreported, 12 October 1989), Gleeson CJ said this:
"In sentencing young people... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important."
23 I am persuaded that his Honour may have given greater weight to general deterrence than was justified, having regard to the youth of the applicant.
24 The last complaint was the failure by his Honour to take account of the time spent by the applicant undergoing rehabilitation. It was appropriate that the applicant should have received recognition, and credit for the time spent in rehabilitation. In R v Eastway (CCA, unreported, 19 May 1992), the Court consisting of Gleeson CJ, Hunt CJ at CL and Matthews J, identified the reasons for doing so. The rehabilitation courses are residential. Persons who undergo them are subject to discipline and restrictions. The Court determined, in that case, that the prisoner should be given credit for half the time spent in rehabilitation. In some cases the proportion has been somewhat higher, as high as 75 percent.
25 Here his Honour did not advert to this aspect, although unquestionably his Honour was aware that the applicant had undergone rehabilitation. It is not apparent from his remarks on sentence that credit was given to the applicant for time spent in rehabilitation. This was an important matter which ought not to have been left to inference. Therefore, I am prepared to find there was error, justifying intervention by this Court, and the setting aside of the sentence. I would therefore give leave to appeal.
26 Approaching the sentencing task, the rehabilitation of the applicant must be given prominence. The applicant is a young man, and his subjective case is extremely strong. As I have mentioned already, an affidavit, which has been filed in Court today, reaffirms his determination to complete that rehabilitation successfully, and to put this episode behind him.
27 For these reasons it seems to me appropriate to sentence the applicant to a term which will give due recognition to the year that he spent in rehabilitation, and to the 132 days that he has spent in custody. For that reason I would frame the sentence in these terms: that there should be a minimum term of 2 months and 25 days, beginning on 1 June 1998 and expiring on 25 August 1998, and there should be an additional term to date from 26 August 1998, during which the applicant should be subject to the supervision of the Parole Service.
28 GROVE J: For the reasons given by Kirby J, I agree that the jurisdiction of this Court should be invoked. I wish to record that, when coming to the question of resentencing, affidavit material before us showed that after the successful completion of the 12 months rehabilitation course at Miracle Haven farm, the applicant remained with the Salvation Army where he drove trucks for them for about four months in return for his keep. Thereafter, it was arranged that he could return to the Wollongong area, where he could look for employment. Whilst he was in the Wollongong area, he worked voluntarily for the Salvation Army until about six weeks ago, when he was successful in obtaining a job on a permanent basis with a furniture removal business. This work is described as very hard and long but it appears that the applicant is successfully engaged in that employment. In those circumstances I agree that the return of the young applicant to imprisonment would serve no useful purpose.
29 The orders of the Court will be:
The application for leave to appeal is granted;
The appeal is allowed;
The sentence imposed in the East Maitland District Court is quashed;
In lieu thereof, taking into account the matters on Form 1, the applicant is sentenced to a minimum term of penal servitude of 2 months and 25 days, to commence on 1 June 1998 and to conclude on 25 August 1998, together with an additional term of 18 months, commencing on 26 August 1998;
We order the release of the applicant on parole, with effect from 26 August 1998. Whilst on parole he is to be subject to the supervision of the Probation and Parole Service.
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