R v Dungay

[2012] NSWCCA 197

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dungay [2012] NSWCCA 197
Hearing dates:	31 August 2012
Decision date:	14 September 2012
Before:	Macfarlan JA at [1] McCallum J at [2] Grove AJ at [43]
Decision:	Crown appeal against sentence dismissed
Catchwords:	CRIME - sentencing - Crown appeal - offence of recklessly causing grievous bodily harm - suspended sentence - whether sentence manifestly inadequate - strong evidence of rehabilitation following disrupted upbringing and frequent offending as a juvenile - consideration of purposes of sentencing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Thawer [2009] NSWCCA 158 Muldrock v The Queen [2011] HCA 39
Category:	Principal judgment
Parties:	Regina (applicant) Raymond Dungay (respondent)
Representation:	Counsel: N Norman (applicant) J Manuell SC (respondent) Solicitors: Solicitor of Public Prosecutions (applicant) Legal Aid NSW (respondent)
File Number(s):	2011/196081
Publication restriction:	None
Decision under appeal	Date of Decision: 2012-04-04 00:00:00 Before: McLoughlin DCJ File Number(s): 2011/196081

Judgment

1. MACFARLAN JA: My reasons for joining in the making of the order made on 31 August 2012 are the same as those recorded in McCallum J's judgment.

1. McCALLUM J: This is a Crown appeal against the sentence passed on Raymond Dungay after he pleaded guilty to an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 10 years. The offence carries a standard non-parole period under s 54A of the Crimes (Sentencing Procedure) Act 1999 of four years (item 4B of the table).

1. The respondent was sentenced in the District Court at Port Macquarie on 4 April 2012. The learned sentencing judge determined that, had the respondent been convicted after trial, the appropriate sentence would have been imprisonment for two years and four months. Taking into account the respondent's plea of guilty at the first opportunity, and allowing a discount of 25% to reflect the utilitarian value of the plea, the judge reduced the sentence to a term of imprisonment of one year and nine months. The judge then determined to make an order under s 12 of the Crimes (Sentencing Procedure) Act 1999 suspending the execution of the sentence and directing that the respondent be released on a good behaviour bond.

1. The Crown's appeal was heard in this Court on 31 August 2012. The Court unanimously dismissed the appeal, reserving its reasons. These are my reasons for joining in the order made on that date.

Circumstances of the offence

1. The offence occurred outside a nightclub in Port Macquarie. Both the respondent and the victim were extremely intoxicated and both had been removed from the nightclub by security guards. The victim, Mr Luke Harper, attempted to re-enter the nightclub on at least four occasions. In light of his level of intoxication, he was prevented from doing so. On one occasion when Mr Harper was attempting to re-enter the club, he collided with the respondent as the respondent was being removed from the club. That chance encounter precipitated an aggressive verbal exchange which, in due course, led the two men to push each other.

1. The respondent then swung a single punch to Mr Harper's head, striking him to the side of the head. The punch was so hard that Mr Harper was unconscious before he hit the ground. His head hit the road and he remained on the ground. The respondent went to see if he was all right and tried to revive him, saying "you can get up now, he's only sleeping". After a short time, the respondent ran away.

1. Mr Harper was taken to hospital and remained in a coma for a period of five weeks. A CAT scan revealed a fracture of the right occipital bone at the back of the skull, haemorrhaging contusions and subarachnoid blood.

1. The respondent was recognised by police on CCTV footage and arrested a few days after the incident. He had no recollection whatsoever of the incident, but cooperated fully with police. He agreed to watch the CCTV footage, readily identified himself as the person who swung the punch and frankly acknowledged his responsibility for the offence on that basis. He described himself as having been, that evening, the drunkest he had ever been. It was his 23rd birthday. He expressed empathy for the victim and regularly called police to inquire as to his welfare over the following weeks.

Respondent's personal circumstances

1. The respondent grew up in Kempsey. His childhood was described by a probation and parole officer as "somewhat disrupted". Violence at the hands of his father caused his parents to separate when he was eight years old. His mother then started living with a new partner, who appears to have had a positive influence on the family.

1. The respondent completed his formal education to year 11 at a juvenile detention centre. As a child, he committed a number of offences between 2002 (when he was 14) and 2006 (when he was 18). He was put on a bond for offences of affray and assault in 2002 and had other offences dismissed with a caution during that year. In 2003 he was ordered to perform community service for offences of larceny, assault and being in possession of stolen goods. Later that year, he was put under a control order for an offence of breaking and entering a building and driving a vehicle in a reckless manner. He was put on a further bond in 2004 for entering enclosed land. In 2006 he was found guilty of drug and dishonesty offences. Finally, in October 2006, he was placed under a control order for 16 months for an offence of robbery in company.

1. The control order expired shortly after the respondent turned 19. During the period of the control order, he appears to have undergone significant rehabilitation. He acquired a substantial number of skills and qualifications. Since 2006, until the present offence, he has faced only one charge, being an offence of driving never having held a licence. That offence was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 and the respondent was discharged without conviction on a good behaviour bond for a period of six months.

Proceedings on sentence

1. The proceedings on sentence commenced on 15 February 2012. No pre-sentence report had been prepared in advance of that date. Further, the prosecutor informed the judge that, despite several requests for a victim impact statement, none had been provided to the Crown. The Crown had accordingly determined that it was necessary to proceed without one.

1. The respondent gave evidence. He said that he had been very concerned for the victim and could not believe it when he was told what had happened. At the time of the proceedings on sentence the respondent was employed and stated that he wasn't drinking as much as he used to. The employer gave evidence in which he gave a glowing reference for the respondent, stating that he was very polite, very honest and that he would employ him "any day". The employer had known the respondent all his life and acknowledged that he had been in a bit of trouble when he was younger, but said that he had not been in any trouble in the last few years.

1. The legal representative for the respondent submitted that the matter could be resolved that day with a non-custodial sentence. The Crown submitted that anything other than a full-time custodial sentence might amount to appealable error. In the face of those submissions, the judge determined to defer passing sentence until a report from probation and parole could be prepared. His Honour stood the proceedings over for six weeks to allow that to occur.

1. When the proceedings came back before the judge on 30 March 2012, a report from probation and parole was tendered. The report was very favourable to the respondent. It confirmed that his previous period of supervision under the control order had been successfully completed with "no issues". The author of the report described the respondent's high achievements in educating himself during that period. She recorded that, although the respondent had no recollection of the offence, he had been devastated and demonstrated empathy for the victim and insight regarding the effect of his conduct. She noted a willingness on the part of the respondent to participate in a victim offender conference and any alcohol counselling thought fit.

1. Summarising community based sentencing options for the respondent, the parole officer noted that, notwithstanding regular offending as a juvenile, the respondent had not offended as an adult apart from the driving offence. She recorded his expression of contrition and noted further that family support, stable accommodation and the prospect of full time employment also augured well for him. She assessed the respondent as being suitable for a community service order but noted that there was no available developmental program that would benefit him at that time.

1. After receiving that report, the judge evidently remained concerned as to the seriousness of the offence and noted that there was no evidence before him as to its ongoing effect on the victim, which his Honour said "may well be determinative". The judge deferred passing sentence again to allow the Crown an opportunity to adduce evidence on that issue.

1. Upon the resumption of the proceedings on 4 April 2012, the only further evidence tendered by the Crown was a copy of a technical report addressed to the victim's treating doctor recording the results of an MRI brain scan carried out on the victim on 26 March 2012. The report was clearly not prepared for the purposed of the proceedings on sentence. It is difficult to have a full appreciation its significance in the absence of any expert assistance to explain its contents. It records, by way of clinical history, that the victim has ongoing symptoms of light-headedness and fatigue but no further detail is provided as to the victim's current condition. The report records some persisting damage consistent with the traumatic brain injury received as a result of the offence. However, beyond recording ongoing symptoms of light-headedness and fatigue, the report falls short of giving any meaningful account of the victim's present condition. That was the only material before the judge on that issue.

1. The judge passed sentence immediately after receiving that further evidence.

Consideration of the respondent's antecedents

1. The first ground of appeal is:

the Sentencing Judge erred in his approach to the respondent's criminal antecedents.

1. The judge said:

His record of being post majority conviction free would allow leniency to be extended.

1. The Crown submitted that, whilst it was true that the respondent had been without conviction (apart from the driving matter) since becoming an adult, the judge had evidently failed to appreciate the severity of the respondent's juvenile criminal history. It was submitted that the severity of the record needed to be "reflected in the sentence imposed".

1. I am not satisfied that patent error is revealed by the judge's remarks. It is beyond dispute that the antecedents were not capable of being taken into account as an aggravating factor: see s 21A(2) of the Crimes (Sentencing Procedure) Act. Such an approach would have entailed error.

1. The submission must accordingly be understood as being directed to the leniency afforded in light of the absence of any record, or any significant record, since the respondent became an adult. Given the respondent's extensive antecedents as a child, it would not have been appropriate to regard the absence of any criminal record as a mitigating factor under s 21A(3). However, I do not think that is how his Honour approached the issue. Rather, in my view, it is clear that his Honour's remarks were directed to the substantial extent to which the respondent had evidently rehabilitated himself. That was amply demonstrated by the respondent's impressive achievements in educating himself whilst serving the control order, his almost clean record since that time and his achievement of a stable work and family environment, all of which had eluded him prior to his attaining his majority.

1. The Crown submitted that the period of rehabilitation was relatively short. I disagree. The respondent was released from the control order shortly after he turned 19. He remained out of any significant trouble until he turned 23, a period of almost 4 years. Those are critical years in the development of a young man. The offender's reaction to the present offence of surprise and remorse reinforces the impression that he had made a choice to adopt a productive life on the right side of the law, and was disappointed in himself for having lapsed. In my view, the period of good behaviour, following as it did upon a substantial period of regular offending as a juvenile, demonstrates an important change and one that was appropriately given substantial weight by the sentencing judge.

Adequacy of the judge's reasons

1. Ground 2 is:

That the sentencing judge erred in not giving adequate reasons for suspending the sentence in light of the standard non-parole period.

1. Section 54C of the Crimes (Sentencing Procedure) Act 1999 relevantly provides:

Court to give reasons if non-custodial sentence imposed

(1)If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.

(2)The failure of a court to comply with this section does not invalidate the sentence.

1. The Judge said:

I have taken into account his plea of guilty as some further evidence of contrition, and as having public utility, and I reduce that sentence to one year and nine months. Mr Magni, in referring to the matters set forth in the Probation and Parole report, and Mr Vale's evidence, submits that such sentence should be suspended.

I recognise the real potential for rehabilitation that has been obtained, firstly by steps taken by the offender himself and with the assistance no doubt of his mother and obtaining the employment that he has. It is a very fine line. The assault he committed was one that was violent and caused significant injury to the victim with one punch knocking him to the ground and the sequelae that followed.

I am persuaded however that such sentence should be suspended.

1. It must be borne in mind that the judge passed sentence as soon as the proceedings on sentence concluded and gave his reasons ex tempore. The content of the requirement of s 54C must be read sensibly and mindful of that context. The judge expressly referred to "the matters set forth in the Probation and Parole report" as the basis for counsel's submission that the sentence should be suspended, and accepted that submission. The reasons should accordingly be understood as incorporating, by reference, all of the detail carefully recorded in the report. As already noted, the report was very favourable to the respondent.

1. The Crown noted that s 54C requires more than simply giving reasons for the sentence imposed: R v Thawer [2009] NSWCCA 158 at [38] per Howie J, Giles JA and Latham J agreeing at [1] and [57] respectively.

1. However, the decision in Thawer needs to be approached with some care. Howie J said:

In my view the section requires that a court explain why it is that, despite the fact that the offence falls within the provisions dealing with the standard non-parole period, a sentence without a non-parole period is being imposed. Of course, as the section states, the failure to comply with it does not invalidate the sentence. But had her Honour endeavoured to comply with the section, it might have brought to her attention the inappropriateness of the course she was adopting having regard to the fact that the offence was one to which the standard non-parole provisions applied and to her finding that the offence was within the midrange of seriousness.

1. Those remarks must now be viewed in the light of the decision in Muldrock v The Queen [2011] HCA 39. In that decision, the High Court explained at [28] that the existence of a standard non-parole period for an offence does not require or permit the Court to engage in a two-stage approach to sentencing, "commencing with an assessment of whether the offence falls within the middle range of objective seriousness in comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period".

1. In my view, it follows from the High Court's rejection of the two-stage approach that a judge will not fail to comply with s 54C simply by omitting to explain why it is that a sentence without a non-parole period is being imposed "despite the fact" that the offence carries a standard non-parole period. The significance of that statutory fact has been diluted since the decision in Thawer.

1. That is not to say that a sentencing judge may overlook the relevance of a standard non-parole period, which remains a factor that must be taken into account as a guide. It is clear that the judge did not overlook the existence of the standard non-parole period in the present case. His Honour referred to it twice.

1. Separately, it may be noted that the judge twice adjourned the proceedings before passing sentence. On each such occasion, the purpose of the adjournment was to enable further evidence to be adduced which his Honour thought would assist him in determining the appropriate sentence.

1. The course of the proceedings on sentence thus reveals anxious attention by the judge to the purposes of sentencing identified in s 3A of the Crimes (Sentencing Procedure) Act. His Honour was evidently concerned on the one hand to promote the continued rehabilitation of the respondent and on the other hand to denounce his conduct and recognise the harm done to the victim. It may be noted in that context that the evidence adduced by the Crown as to the victim's ongoing condition and the impact of the offence on him was limited in the ways explained above.

1. I am not persuaded that the learned sentencing judge failed to give adequate reasons for his decision to suspend the sentence.

Manifest inadequacy

1. The final ground is that the sentence was manifestly inadequate. The Crown noted that the judge had assessed the offence as being "in the middle of any scale constructed for such offences" and one which "must result in a prison sentence". It was submitted that the sentence imposed does not reflect that finding.

1. The Crown noted that the sentence of 1 year and 9 months equates to the head sentence, not a non-parole period. Of course, that was the sentence reached after applying a discount of 25% to reflect the plea, so that the starting point was a sentence of 2 years and 4 months.

1. It may certainly be accepted that the sentence was lenient. However, I am not persuaded that it was outside the permissible range. The offence is not in the category of cases aggravated by the use of a weapon, nor was there evidence on which his Honour could conclude that the victim had suffered significant ongoing disability, such as "glassing" cases where the victim has suffered the loss of an eye.

1. The judge evidently placed considerable weight on the desirability of promoting the respondent's rehabilitation. In the particular circumstances of this case, there was ample warrant for doing so. His Honour gave careful consideration to the importance of denunciating the respondent's conduct and recognising its impact on the victim but determined, in the absence of precise evidence on the latter issue, that full-time custody was not required in the present case.

1. It should not be thought that the object of promoting the rehabilitation of an offender is necessarily in conflict with the other purposes of sentencing. In my respectful opinion, this was a thoughtful and proper exercise of the sentencing discretion and one with which this Court should not intervene.

1. GROVE AJ: On 31 August 2012, I joined in the making of orders that the Crown appeal be dismissed. I have had the advantage of reading, in draft form, the judgment of McCallum J and I gratefully adopt her detailed exposition of the facts, circumstances and issues and will not repeat them. My reasons for joining in the orders made by the Court differ from her Honour but these can be shortly stated.

1. The offence of recklessly causing grievous bodily harm can be seen to lie in a chain of types of offence by battery ranging from common assault to forms of homicide. As the prescribed maximum penalties for the various crimes demonstrate, the seriousness attached to each is reflected by the outcome, hence such crimes are sometimes referred to as being in the category of "result offences".

1. As McCallum J has recorded, although the respondent's action involved only a single blow, its result was to place the victim in a coma for five weeks, to fracture the skull and cause intracranial injury. It is true that the evidence of final outcome is somewhat obscure but it is clear that, at least to the time of sentence, there are continuing consequences.

1. Even balanced against powerful subjective considerations, I am unable to conclude other than that, making proper reference to statutory guideposts, the sentence assessed was manifestly inadequate.

1. However, I do not expand upon the reasons for that conclusion because, as stated, I agreed that the Crown appeal should be dismissed. The rehabilitation of the respondent, after an unpromising juvenile passage, I consider to have been shown to be quite remarkable. It would have been, in my view, a miscarriage of the Court's residual discretion to commit the respondent now into custody with the obvious potential to damage or destroy his achievements in personal and social rehabilitation.

1. For this reason, I joined in the orders of the Court.

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Decision last updated: 19 September 2012