R v Howard

[2000] NSWCCA 378

CITATION:	R v Howard [2000] NSWCCA 378
FILE NUMBER(S):	CCA 60238/00
HEARING DATE(S):	11/08/00
JUDGMENT DATE:	11 August 2000
PARTIES :	Regina- Crown Michael John Howard- Applicant
JUDGMENT OF:	Dowd J at 1; James J at 18

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0176
LOWER COURT JUDICIAL OFFICER :	Hosking DCJ

COUNSEL :	Mr RD Ellis- Crown Mr CB Craigie- Applicant
SOLICITORS:	SE O'Connor- Crown Sydney Regional Aboriginal Corporation Legal Service- Applicant
CATCHWORDS:	Severity appeal - Assault occasioing actual bodily harm
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	R v John William Crombie [1999] NSWCCA 297.
DECISION:	1. Appeal dismissed; 2. Leave to appeal granted.

IN THE COURT OF
CRIMINAL APPEAL

BRUCE JAMES J
DOWD J

Friday 11th August 2000

N60238/00


REGINA v MICHAEL JOHN HOWARD

JUDGMENT

1 DOWD J: The applicant, Michael John Howard, who is now 21 years of age, entered a plea on 17 March 2000, and was sentenced on 26 April 2000 by Hosking DCJ on a charge of assault occasioning actual bodily harm, contrary to s59 of the Crimes Act 1900, ("the Act"), which carries a maximum penalty of five years imprisonment. The applicant pleaded guilty to the offence and was sentenced to a fixed term of twelve months imprisonment, to commence on 26 April 2000 and to expire on 25 April 2001.

2    The facts are that the victim, Mr Derivieri and a friend, Mr Ruhl, had been to a football match and were returning to Epping Rail Station. On alighting from a taxi, they were approached by a group of young men, including the applicant. One member of the group called the victim and his friend "faggots". There were words passed between the two men and the group.

3    As Derivieri walked down the footpath towards the hotel, members of the group walked beside him, one on either side of him, and a young man on his right stared at Derivieri, causing him to feel threatened by the people closing in around him. After a few more metres, Derivieri looked back to his friend and saw that he was surrounded by five youths who had blocked his friend's path and that they had started to punch him. The man to Derivieri's right than began to punch Derivieri on the right side of his face with his left fist. When Derivieri sought to retaliate and defend himself, he received a punch to the mouth and a sharp blow to the back left side of his head.

4    Derivieri next recollected waking up on the footpath, where he sought the help of his friend and another man who was present. He was told to lie still. He suffered pain in his mouth, his right ear, and his left ankle, and he could see blood all over himself and the footpath. Shortly thereafter, an ambulance arrived and Derivieri received stitches to the right side of his lip, his right eyebrow, the right side of his forehead, and to the back left side of his head. He lost the top half of his bottom tooth and experienced humming in his right ear. His left leg was broken in the region of his ankle, and he had two screws placed at the sides of the fracture.

5    The applicant was arrested, taken to Eastwood Police Station, where he was interviewed by way of electronic record of interview. In that electronic record of interview, the applicant made certain admissions as to his conduct, including the fact that he had kicked the victim in the chest. The applicant was unable to give a satisfactory explanation as to how his knuckles became grazed and his trouser leg had blood on it, as did the shoe that he was wearing.

6    In sentencing, His Honour had before him a statement of facts, which included a statement of facts asserting that the applicant had kicked the victim a number of times before leaving the scene. The applicant's explanation was that he went to help his brother Nathan, and that the victim was in fact already on the ground. It is a somewhat incredible statement that if the victim was on the ground, that he needed to help his brother.

7    In his sentencing remarks, His Honour dealt with the facts fairly generally. His Honour talked about the severity of the incident in general terms. His Honour's words were

"On any objective view of these facts, this was an extremely serious assault, and in my view in the scale of assault occasioning actual bodily harm, this offence lies very much towards the top of the scale of seriousness of that offence."

8    What His Honour was talking about was the result of the collective joint criminal enterprise of those involved in the kicking and punching of the victim and indeed the victim's friend, rather than the specific involvement of the applicant, although as I have indicated as set out in the sentencing facts sheet, the applicant had kicked the victim on more than one occasion, even though he only admitted to one kick, although that is not entirely clear from the electronic record of interview.

9    His Honour, notwithstanding his finding that it was very much towards the top of the scale of seriousness, nonetheless gave a sentence of 12 months. This represents only twenty percent of the available range for what was, on the facts, a very serious incident, and one which the court was obliged to consider in terms of general deterrence as well as specific deterrence. Any suggestion that it is only the conduct of the applicant which is relevant on sentencing him is to misconceive the nature of the offence.

10    The court had before it, and His Honour in fact referred to, the fact of the seriously deprived background of the applicant. He took into account the factor of his Aboriginality and the very difficult circumstances in which urban Aborigines are brought up as indeed are the non-urban. Clearly the applicant, in there being no further offences since that time, the event of the arrest and bail has had a salutory effect. The delays in bringing the matter before the court cannot generally be visited on any party. The fact is that he has not committed further offences. However, the court needed to look at the objective gravity of the offence and His Honour clearly had regard to that.

11    Counsel for the applicant have pointed out that the fact of youth as well as rehabilitation ought to be taken into account. It is however difficult to see how the fact that one of a large number of youths involved in an attack on innocent members of the public in a very public place, the fact that one of them being Aboriginal and affected by alcohol places him in that circumstance any different to any of the other youths, whatever their racial origin may be, who are similarly affected by alcohol who choose collectively to severely assault an innocent bystander. The fact that the offence occurs in company is of itself clearly an aggravating factor.

12    Mr Craigie, counsel for the applicant, has referred the court to the decision of R v John William Crombie [1999] NSWCCA 297, and points to the fact that the offence itself would normally be dealt with by a Magistrate who has a limit of two years in sentencing, or three years when sentencing for more than one offence. Crombie obliges this court, when considering the question of the grant of leave, to take into account the desirability of a District Court, taking into account that there may be some mitigation of sentence which might otherwise be imposed for offences coming before it on indictment that might have been dealt with before a Magistrate.

13    It must however be clearly understood, that Crombie does not abrogate what the legislature has determined - that a Magistrate has a two year limit. There is a policy implicit in the Act to ensure that people are encouraged to be dealt with before the Local Court because of the heavier penalty otherwise involved. All it obliges a court to do in the District Court is to actually give consideration to that matter, which His Honour did not do, and that fact may be as a factor to be taken into account.

14    It must be said however that the seriousness of this particular offence might have been a matter where the Local Court would have elected not to deal with the matter and sent it up to the District Court for sentence. Crombie therefore obliges this Court to look at whether the limit of the Local Court was addressed in the granting of leave, but the Court then has to look at the offence itself and to look at the provisions of s6(3) of the Criminal Appeal Act 1912 and to look at the question of whether a less severe sentence is warranted in law or should have been passed.

15    It could not be said on the particular involvement of the applicant, in my view, notwithstanding the mitigating factors and the admission that he made and the plea of guilty, that his own actions, but certainly the collective actions of them all, all of those involved in this serious offence, make it anything other than a very serious assault with serious consequences for the totally innocent and vicariously chosen victim.

16    In my view, the sentence that was imposed for an assault such as this was certainly not one where a less severe sentence was warranted.

17    In the circumstances, I would therefore grant leave to appeal but would dismiss the appeal.

18    BRUCE JAMES J: I agree with the judgment of Dowd J, and the orders of the court will be as proposed by His Honour.

oOo