R v Galati

[2002] NSWCCA 366

CITATION:	R v Galati [2002] NSWCCA 366
FILE NUMBER(S):	CCA 60413/02
HEARING DATE(S):	29 August 2002
JUDGMENT DATE:	4 September 2002
PARTIES :	Crown - Appellant Daniel Joseph Galati - Respondent
JUDGMENT OF:	Handley JA at 1; Simpson J at 2; Bell J at 50

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0447
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

COUNSEL :	PJP Power - Crown CJ Watson - Respondent
SOLICITORS:	SE O'Connor - Crown Roper & Stegall - Respondent
CATCHWORDS:	Crown appeal - malicious infliction of grievous bodily harm - matters of aggravation - objective gravity of offence - delay on part of the Crown
LEGISLATION CITED:	Crimes Act 1901 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Hallocoglu (1992) 29 NSWLR 67 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
DECISION:	Crown appeal allowed; sentence set aside and in lieu thereof a sentence of a fixed term of imprisonment for three years, to be served by way of periodic detention.

60413/02

HANDLEY JA
SIMPSON J
BELL J

4 September 2002

REGINA v Daniel Joseph GALATI

Judgment

1 HANDLEY JA: I agree with Simpson J.

2 SIMPSON J: On 6 August 2001 the respondent pleaded guilty to a single charge of malicious infliction of grievous bodily harm (Crimes Act 1901, s35(b)), and asked that two offences of possession of prohibited drugs be taken into account pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999. Eight months later, on 26 April 2002, Judge Coorey sentenced the respondent to imprisonment for three years, with a non-parole period of one year, the sentence to be served by way of periodic detention. The maximum sentence available is imprisonment for seven years.

3 The Crown appeals against the sentence, asserting that it is manifestly inadequate.

the facts

4 On any view (particularly having regard to the consequences, of which I shall say more shortly) the offence was a most serious one of its kind. It was committed at about 3.00 a.m. on the morning of Sunday, 12 November 2000. The respondent was one of a group of friends drinking at the Steyne Hotel at Manly. He had consumed a great deal of alcohol and was thoroughly intoxicated. He had also taken two ecstasy tablets and possibly some marijuana and/or cocaine.

5 The group had left the hotel, and some of them were chatting in a nearby street. The victim of the offence, Robi Taylor, appeared in the vicinity. He had not previously been part of the respondent’s group, but became engaged in conversation with one of the young men who had been. For no apparent reason, the respondent attacked Mr Taylor by kicking him to the side of the head, in a motion that was sometimes described as a “karate kick”. Mr Taylor fell to the ground unconscious. One of the respondent’s friends, Anwar Omar, pushed the respondent away, telling him to go. The respondent began to cry asking “What have I done?”. At some point he suggested that Mr Taylor should be put “in a recovery position”. Mr Omar and other men present attended to Mr Taylor and assisted him to go home. The respondent telephoned Mr Omar, again asking what he had done. Mr Taylor was shortly after taken to Manly Hospital, from where he was transferred to the Royal North Shore Hospital. Medical evidence showed that he suffered extensive acute traumatic right subdural hematoma and adjacent right temporal intracerebral hematoma with a significant mass effect and right-sided pneumothorax.

6 He underwent surgery on the day of his admission and was treated in intensive care for five days. He remained an inpatient until his discharge on 23 November. He was then advised not to work for three weeks, or to drive for one month. He was subsequently readmitted and remained an inpatient for four weeks, having contracted a secondary infection.

7 In a victim impact statement, Mr Taylor detailed the effects of the assault upon him. It is convenient here to refer to that material. Mr Taylor was 21 years of age at the time of the assault. He was an apprentice butcher. He lost consciousness, but was assisted to his home. Ambulance officers attended after his girlfriend became concerned about his condition. He was vomiting violently and suffering intense pain, which continued and, indeed, continued up to the date he made his statement. He was previously a fit and active young man, hard working and achieving well in his career. He suffered flashbacks and recollections of the attack. He lost 15 kilograms in weight. On his return to work he became impatient with customers, eventually losing his job as a result. He continued to suffer severe headaches. He can no longer engage in his former physical activities such as playing football. He has become anxious.

8 As I indicated earlier, by reference to the consequences of the assault, this crime was a very serious one indeed.

9 On the day after the assault, the respondent presented himself at the Manly Police Station, with a solicitor, and was interviewed. Although he made admissions, since he had little or no recollection of the crucial events he did not attempt to deny or defend the allegations against him, and, in truth, accepted his responsibility.

10 There is, in the evidence, no explanation for what the respondent did. He himself has no recollection of the event. Plainly, he was extremely intoxicated, and possibly also affected by the ecstasy or other drugs he had ingested.

11 The respondent was assessed by a psychiatrist, Dr Nielssen. Dr Nielssen considered that the drug most responsible for the assault was alcohol. The respondent told Dr Nielssen that the quantity of alcohol he had taken that night was the most he had ever consumed at one time.

12 Dr Nielssen raised the possibility that, in fact, the respondent had been engaging in horse play shortly before the incident, and that the kick directed at Mr Taylor was simply a manifestation of that horse play. This appears to have been suggested to him by the respondent. There is no other evidence to support the proposition. Indeed, statements of eye witnesses, all young men who were present in the vicinity, are to the contrary. The act of the respondent was a completely unexpected, apparently impulsive one. The respondent suggested to Dr Nielssen that landing the kick was a fluke, because his coordination was so badly affected by his intoxication that he could not have achieved an intention to kick Mr Taylor. The sentencing judge made no findings of fact on these questions, which do not appear to have been presented to him for resolution.

subjective circumstances

13 The respondent presented a relatively strong subjective case. He was born on 4 February 1979, and was almost twenty-two years of age at the time of the offence. He had a criminal record which included convictions for possessing and using firearms without a licence or permit (on each of which he was fined $100) and receiving stolen property (for which he was fined $200). Each of these offences was dealt with in the Manly Local Court in 1997. In 1998 he was again before the same court, this time on charges of driving an unregistered and uninsured motor vehicle, and one bearing number plates calculated to deceive, and a charge of goods in custody. He was again fined and released on a recognisance. Nine days before the present offence, on 3 November, he was arrested and charged with possession of marijuana and amphetamines. (These were the offences dealt with on the Form 1 in the sentencing on the present offence.) As at 12 November the respondent had not disclosed the drug charges to his parents.

14 The respondent was adopted at the age of about fifteen months, into a supportive and loving family. He had had a relatively normal childhood, although with a rebellious phase during adolescence. His father, a general practitioner, gave evidence on his behalf, and the whole of his family attended the sentencing proceedings, including one older sister who had travelled from Darwin to be present. His father attested to the respondent’s regret for his behaviour and his concern for Mr Taylor’s welfare. The sentencing judge accepted the evidence of remorse as genuine.

15 The respondent has had a variety of jobs, none of which seems to have lasted very long. At the time of sentencing he was living in a self contained apartment in the family home, in a stable relationship with his girlfriend. That relationship appears to have commenced on or shortly before the night of the offence. His girlfriend’s parents provided to the sentencing judge a letter expressing their support for the respondent, and for the relationship with their daughter.

16 Both the respondent’s father, Dr Galati, and the respondent himself gave evidence. Dr Galati spoke of the respondent’s remorse for his behaviour, and the concern he had expressed for Mr Taylor such that Dr Galati had contacted the hospital to inquire about his condition. As a consequence of the respondent’s anxiety condition, his father had prescribed medication for him.

17 A significant piece of evidence given by the respondent of which mention will later be made, was that, following the offence, he had sought counselling. His evidence was:

“ … it made me realise I needed some help. I needed to address my problems which I did straight away, and meant a whole turn around in my life to sort out what problems I had and get back on track.”


Later, in answer to a question in cross-examination, he said that the counselling had started about a month after the incident. The respondent said he was receiving drug and alcohol and anger management counselling on a fortnightly basis. He said the counselling had changed his whole opinion on drugs and alcohol and the way he wanted to live his life. He reiterated his regret for his actions and apologised to Mr Taylor.

the remarks on sentence

18 The sentencing judge set out the objective circumstances. He made extensive reference to the subjective matters that had been raised on behalf of the respondent. One matter to which he devoted some attention was the delay in sentencing. As I have noted above, the respondent entered a plea of guilty on 6 August 2001, but sentencing was not completed until 26 April the following year. The sentencing judge observed that the matter had been adjourned, at the request of the Crown, on 16 November 2001, 13 December 2001, and 4 April 2002. He concluded that the respondent was not responsible for any of those delays, and accepted that the delays had caused stress to both Mr Taylor and also to the respondent and his family. He accepted that the respondent deeply regretted his actions.

19 The respondent has, indeed, suffered considerable stress since being charged, and now suffers high blood pressure for which he is required to take medication. He has symptoms of anxiety, insomnia, appetite loss and poor concentration.

20 His Honour noted that the assault was unprovoked.

21 He concluded, correctly, that a prison sentence was the only sentence that could reasonably be imposed.

the Crown appeal

22 The Crown has submitted that the sentence imposed was manifestly inadequate, particularly as it was ordered to be served by way of periodic detention. It is well recognised that a sentence specified to be served by way of periodic detention carries with it an element of leniency: R v Hallocoglu (1992) 29 NSWLR 67. The principal submission of the Crown is that, having regard to all the circumstances, and without the need to identify any specific error, the sentence itself bespeaks manifest inadequacy. The absence of any provocation by Mr Taylor would support that proposition.

23 Sentencing statistics also support the contention of the Crown. They show that 64% of all offenders dealt with under s35(b) were sentenced to periods of full-time custody and only 14% were given a sentence to be served by way of periodic detention. In considering those statistics it is relevant to bear in mind that this was a particularly serious instance of a s35(b) offence; it would have to be seen as at the outer edge of crimes of its kind.

24 In oral submissions, counsel for the Crown acknowledged that no express error could be discerned in the approach taken by the sentencing judge, or in the remarks on sentence. Rather, he submitted, error could and should be inferred from the leniency of the sentence itself. Counsel pointed to a number of features which, he argued, could be taken to have been given excessive or inadequate weight.

25 For example, he argued that a number of matters of aggravation appear to have been either overlooked or not given sufficient weight. These he identified as:

· that the attack was completely unprovoked;

· that the attack involved a forceful kick to the head;

· the fact that the attack occurred just days after the respondent was charged with two drug offences (and was, presumably, on bail for those offences);

· the extent of the injuries sustained by Mr Taylor.

26 In response, counsel for the respondent pointed to some passages in the transcript, and in the remarks on sentence, which, in her submission, demonstrated that his Honour was fully conscious of the nature of the crime.

27 During the respondent’s evidence-in-chief, the sentencing judge asked him a series of questions. These included:

“Q: Did you realise soon after all this that the victim had actually started to haemorrhage internally, were you aware of all that?
“Q: At one stage he could have died, do you realise all of that?”

28 During his remarks on sentence, the judge extracted a passage from Dr Nielssen’s report in which clear reference was made to the extent of the injuries. Finally, having stated the sentence he imposed, the judge addressed the respondent directly, saying, inter alia:

“ … because you must realise the injury you caused this young man that you kicked was a serious injury. He was hospitalised in November I think it was for something like eighteen or twenty days, almost three weeks I think. So it was a serious injury. And you could have killed him.”

29 I do not think it could fairly be said that the sentencing judge was not fully conscious of the force used by the respondent. Nor do I think it could fairly be said that he was not conscious of the unprovoked nature of the attack; that was something that underlay the whole of the sentencing proceedings. The transcript shows that the drug charges were brought to his Honour’s attention.

30 Further, while recognising that the respondent was entitled to some reduction in sentence by reason of his plea of guilty, counsel for the Crown argued that it would appear that excessive weight was given to this circumstance. This is a little difficult to consider, as his Honour failed to specify the extent of the reduction he gave as a result of the plea.

31 The plea of guilty was certainly not entered at the first reasonable opportunity. Indeed, it was formally entered on 6 August 2001, which was the day the charge was fixed for hearing before a judge and jury. During the course of the appeal, there was some discussion about the extent of the discount to which the respondent was entitled on the principles stated in R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The best that can be gleaned from the transcript is that, during the course of the matter being mentioned before the Chief Judge on an occasion about two weeks earlier, the respondent had signalled his intention of pleading guilty.

32 Another matter argued on behalf of the Crown was that insufficient weight was given to the element of general deterrence.

33 There is one matter raised on behalf of the Crown that requires some examination of factual material. The Crown submission reads as follows:

“20 His Honour was clearly concerned that the respondent received counselling. The Crown conceded during the sentencing proceedings that if the claim of the respondent that he sought counselling soon after the assault was true, that his Honour was entitled to give that fact considerable weight and that it would not be inappropriate to impose a sentence to be served by way of periodic detention. It was the Crown submission at sentence that such action would have been clear evidence of remorse and recognition on the respondent’s part that he required professional help However, the respondent’s evidence that he sought counselling soon after the offence was ultimately proved to be false : in the circumstances it is the Crown position that a full-time sentence is appropriate.” (emphasis added)

34 The Crown Prosecutor did indeed make such a concession, which strikes me as a rather curious one.

35 In fact, it appears to have been accepted, ultimately, that the respondent first sought counselling in August 2001. That appears, initially, from an exchange between the respondent’s counsel and the judge on 6 August, during which counsel said that the respondent would be starting a drug and alcohol, and anger management, course the following day. In the pre-sentence report it was stated that the respondent sought an assessment with a drug and alcohol counsellor in August 2001. Accordingly, on the day the respondent was finally sentenced, 26 April 2002, counsel for the Crown stated, without dissent from counsel for the respondent, that the respondent attended counselling on 21 August “for the very first time”.

36 In the light of the applicant’s own evidence about when he first started counselling, which was not challenged, it is difficult to reach a firm conclusion about the question.

37 I think, however, the Crown is on solid ground in arguing that the factual premise on which the Crown’s concession was based was not established. Far from seeking counselling immediately after the offence, the respondent did not, on one item of the evidence, make that approach until nine months had passed.

38 In the context of a discussion about the counselling the judge asked counsel for the Crown if his submission would have been affected if he were satisfied that counselling had commenced shortly after the commission of the offence. Counsel replied:

“Absolutely. If he has obtained counselling from a point after the commission of this offence as he testified he had – ”

39 His Honour interrupted, suggesting that such evidence would go to rehabilitation and to this counsel for the Crown appears to have agreed. There followed some discussion, among other things about whether a full-time custodial sentence was called for, after which the judge asked counsel for the Crown the following question:

“Does it change your submission that if indeed he has been counselling (sic) from an early stage, is it still the case where you think there should be full-time custodial sentence or not, do you say?”

40 The following passages then appear in the transcript:

“HIS HONOUR: Is it a case where if you were satisfied that he was having counselling, would it affect your submissions?
[COUNSEL FOR THE CROWN]: I say yes but it goes to the question of – it goes to the extent of his remorse for the purposes of the overall discount to be considered --
HIS HONOUR: I suppose what I am saying though is, if you accept that there is remorse, would that convert it from a full-time custodial to anything else or not?
[COUNSEL FOR THE CROWN]: I would say it has the potential to bring it into the realm where full-time custodial sentence is to be served by way of other means become appropriate for the Court.
HIS HONOUR: You mean like, by?
[COUNSEL FOR THE CROWN]: Periodic detention:
HIS HONOUR: Yes, I do get – you’re allowed that.
[COUNSEL FOR THE CROWN]: Yes. It’s been a while since I’ve had – careful regard to the authority that I had before your Honour, but I am of the view that the sentence as it stands with this material being unchallenged and therefore perhaps not carrying the weight that it ought to, would exceed the appropriate amount for periodic detention.

HIS HONOUR: Where as you say there has been in fact counselling as asserted then you would say that that may be a situation where the sentence could be served by periodic detention.
[COUNSEL FOR THE CROWN]: It may give the Court cause to consider it because the overall sentence could fall within the maximum length available.”

41 Certainly both counsel for the Crown and the sentencing judge appeared to set considerable store by the timing of the respondent’s decision to seek counselling. The Crown concession, so far as it can be understood, appears to have depended upon an early approach by the respondent to the counselling service. It was therefore important to know just when that approach was made. I have already extracted the evidence given by the respondent in this respect. That evidence was given on 16 November 2001.

42 The respondent said that the commission of the offence made him realise that he needed help in addressing his problems, and this he sought immediately. He said this brought about “a whole turnaround” in his life to sort out his problems and “get back on track”. He said that he had not previously realised that he needed help but that after the events of 12 November he realised that “something had to be done”. He intended to deal with that by continuing the drug and alcohol counselling and anger management counselling that he had undertaken.

43 Counsel for the Crown pointed to authorities which are well known, which state that a compelling circumstance in the sentencing exercise is the evaluation of the objective seriousness of the offence; and that rehabilitation of the offender, whilst important, cannot override the objective seriousness of the crime and the need for a sentence to reflect principles of both general and specific deterrence. He submitted that these principles were not, and were evidently not, applied in the present sentencing exercise.

44 Having regard to all of these matters, I am persuaded that the Crown appeal should succeed. The sentence imposed did not adequately reflect the objective gravity of the offence. It may be that any, some, or all of the matters referred to by the Crown provide the explanation for the inadequate sentence. It is neither necessary nor desirable to attempt to pinpoint what matters are the foundation for the error. The fact is that, for this very serious crime, a sentence which contains a minimum term of twelve months’ imprisonment to be served by way of periodic detention is manifestly inadequate.

45 It is not without significance that, in the sentencing remarks, there is no reference to the very compelling victim impact statement made by Mr Taylor. This, it seems to me, is indicative that his Honour did give undue weight to the respondent’s subjective circumstances, and his very good prospects of rehabilitation, at the expense of other important sentencing factors.

46 It therefore becomes necessary for this Court to resentence the respondent. There are two matters that here demand consideration. Having read the transcript of the sentencing proceedings, I have come to the view that his Honour did not receive from the Crown that degree of assistance to which he was entitled. I have already referred extensively to the concession concerning the suitability of a sentence to be served by way of periodic detention. I have serious doubts whether that was a proper concession to make. Further, on the first day of the sentencing proceedings, counsel then appearing for the Crown accepted that the respondent would be liable only for the first period of Mr Taylor’s hospitilisation, the second (he appears to have thought) being attributable to some supervening cause for which the respondent was not accountable. I doubt the validity of that proposition also.

47 One matter raised on behalf of the respondent should now be adverted to. It concerns the delay on the part of the Director of Public Prosecutions in filing and serving the Notice of Appeal. The sentence was imposed on 26 April 2002. The respondent commenced his sentence shortly thereafter. On 7 May 2002 the Director wrote to the respondent advising that consideration was being given to filing an appeal, but the Notice of Appeal was not filed until 4 July, and not served until 11 July. There is no explanation from the Crown for this lengthy delay.

48 Delay on the part of the Crown is a relevant factor, particularly in relation to the consideration of the exercise of the residual discretion not to uphold a Crown appeal even where the grounds are otherwise made out. It is of special relevance when the sentence challenged is relatively short. Delay in appealing has the effect that a greater proportion of the minimum term of the sentence has been served by the time the appeal is heard.

49 Sentencing courts must focus upon the consequences of criminal behaviour. Here the consequences to Mr Taylor were dramatic, but were, in my opinion, apparently overlooked by the sentencing judge. The sentence imposed is one which does not reflect the objective seriousness of the offence committed. In the ordinary course I would have no hesitation in concluding that the respondent should have been sentenced, and should now be sentenced, to a period of three years in full-time custody, with an appropriate non-parole period. However, having regard to the delays in bringing the matter to a conclusion before the sentencing judge, replicated by the delays in filing and serving the Notice of Appeal, together with deficiencies in the manner in which the case was presented (in the District Court) on behalf of the Crown, and the special considerations that apply when resentencing after a successful Crown appeal, I propose that this Court allow the Crown appeal, set aside the sentence, and in lieu thereof impose a sentence of a fixed term of imprisonment for three years, to be served by way of periodic detention.

50 BELL J: I agree with Simpson J.

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