R v Mark Barry Sutherland No. SCCRM 92/665 Judgment No. 3705 Number of Pages 5 Criminal Law and Procedure

[1992] SASC 3705

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PERRY(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - Sentence - causing grievous bodily harm with intent - imprisonment for 9 years cumulative upon 18 months for unlawful sexual intercourse - non-parole period extended from 12 months to 6 and 1/2 years - stomping on head of victim causing permanent brain damage - man aged 22 years with only minor prior convictions - sentence severe but in view of gravity of crime not excessive - appeal against sentence dismissed.

HRNG ADELAIDE, 16 November 1992 #DATE 16:11:1992
Counsel for appellant:     Mr A I Parker
Solicitors for appellant:    Johnston Withers
Counsel for respondent:     Mr B J Jennings QC
   with Ms H M Lines
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 KING CJ The appellant pleaded guilty at the Pt Augusta circuit sittings of the Supreme Court to a charge of causing grievous bodily harm with intent to cause grievous bodily harm. He was sentenced to imprisonment for a term of nine years which sentence was made cumulative upon a sentence of 18 months imprisonment which the appellant was serving for the crime of unlawful sexual intercourse. The learned judge stated that he was fixing a new non-parole period of six years and six months and I take that to mean that he was extending the previously fixed non-parole period of 12 months by five years and six months. 2. The appellant has appealed to this court against the sentence for causing grievous bodily harm. The circumstances of the crime are that the victim and the appellant are both young men. The appellant is aged 22 years. On an occasion about six weeks prior to the incident which is the subject of this charge, the victim had attacked the appellant with an iron bar. The appellant apparently entertained feelings of resentment as a result of that attack. 3. On 15 October 1991, the appellant and the victim were with other young men at a house in Port Augusta. Late in the afternoon the victim suffered some injury and was found in the laundry of the house. There is no evidence that the appellant was associated with the infliction of that injury. 4. The victim was carried into a bedroom and placed upon a bed. He lay on the bed, apparently either sleeping or unconscious. While the victim was on the bed the appellant stood on the head of the victim and stomped on his head at least twice. 5. The appellant was wearing heavy boots with steel caps and rubber soles. 6. The learned judge, in passing sentence, referred to the injury sustained by the victim in consequence of the appellant's actions, as follows:
    "The injuries you inflicted were extremely severe. The
    victim has permanent brain damage and, almost a year later,
    is still in the Julia Farr Centre. He will never live a
    normal life." 7. That finding was based upon a victim impact statement which was placed before the learned judge, and upon submissions made to the learned judge by the Crown Prosecutor. 8. Mr Parker, who appears for the appellant, has argued that the evidence is not sufficient to enable a finding to be made as to the precise extent of the injuries suffered by the victim in consequence of the appellant's assault, as distinct from the injuries which he suffered in the earlier incident to which the appellant has not been linked. 9. It seems to me, however, that on the material before the learned judge, he was perfectly right to draw the conclusion which he drew, namely, that the permanent brain damage was the result of the appellant's assault. 10. The stomping action of the appellant, while wearing heavy boots, was inherently likely to cause severe damage, and quite likely to cause permanent brain damage. 11. The learned judge had before him the victim impact statement, which of course related to the impact of the appellant's crime, to which I have referred, and that statement stated that the victim received severe bruising to the brain, particularly the right side. It went on to say:
    "He is now in the Julia Farr Centre, where he is not
    completely aware of his surrounding, and is in a state of
    vegitation (sic). He is showing very slow progress, but
    is expected to have perminent (sic) brain damage". 12. That allegation was not put in issue by the submissions which were made to the learned judge. Indeed, counsel for the appellant said: "(The injuries which the appellant) admits (causing) by his plea, amounted to grievous bodily harm and on all the material very possibly, although we cannot, in my submission, on the evidence, be precisely sure of this, but very possibly amounting to the major part of the extremely severe overall injuries that Mr Callis suffered." 13. It seems to me, on the material which the judge had before him, both as to the nature of the assaults and the nature of the injuries, and as to the present condition of the victim, and in the absence of any challenge to the inference that the assault by the appellant resulted in permanent brain damage, that the judge was perfectly right in drawing the conclusion that the permanent brain damage was the result of the injuries which the appellant inflicted, and he was properly sentenced upon that basis. 14. Mr Parker has argued that the learned judge failed to have sufficient regard to the fact that the appellant pleaded guilty. The plea of guilty is an important consideration. It was made, for all practical purposes, at the first reasonable opportunity, and, in accordance with the authorities, it was the obligation of the judge to make appropriate allowance for it. His Honour said, "I take into account your age and your plea of guilty." That was the only reference in the sentencing remarks to the plea of guilty. 15. I think that it is unfortunate that his Honour did not indicate the extent by which he reduced the sentence which he would have otherwise imposed, in the consequence of the plea of guilty. 16. This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the state to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity. 17. General awareness of the advantage to be gained by a plea of guilty would be contributed to by judges indicating clearly, in their sentencing remarks, not only that they have taken the plea of guilty into account, but also the extent to which they have taken it into account. 18. I think that this court should actively encourage sentencing judges to take that course. 19. It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight. That can only be judged by assessing what would have been a reasonable sentence if there had been no plea of guilty, and comparing it with the sentence actually imposed. 20. Mr Parker stressed various matters which he said operated in mitigation. There is no doubt that this young man has had, what Mr Parker correctly described as "a very unfortunate and disadvantaged background". Unfortunately, however, he also has a poor record. He was in trouble constantly as a juvenile, and as an adult he has a string of convictions. It is true that none of those convictions are for violence, and that until he was sentenced for the crime of unlawful sexual intercourse, to which I have referred, he had not previously been imprisoned. Nevertheless, his history of offending against the law deprives him of much of the claim to leniency which he might otherwise have derived from his youth and unfortunate background. 21. It seems to me that the sentence of nine years imprisonment implies that if there had been no plea of guilty, the sentence would have been in the vicinity of 12 years. That is undoubtedly a severe sentence, but this was a very serious crime. The victim was lying on a bed, either sleeping or unconscious, following injuries which he had previously sustained and which were quite visible, and therefore must have been well-known to the appellant. The appellant engaged in what can only be described as a callous and brutal assault, and one which he well knew and intended to cause very serious injury. To stomp on a man's head, with heavy boots, is obviously likely to cause severe and even permanent damage. The appellant may have been somewhat affected by liquor, but the evidence does not suggest that he was so far affected by liquor that he would not have had the normal awareness that an assault of this kind produced a great risk of permanent damage. 22. He is apparently a man of above average intelligence, and there is no reason to suppose that he would not have been well aware that the injuries, which he was inflicting upon this victim, could well ruin the victim's life. 23. Although I knowledge in response to Mr Parker's argument, that the sentence imposed upon this appellant is a severe sentence, I think that having regard to the gravity of the crime, it was within the scope of the judge's sentencing discretion, and that this court ought not to interfere. In my opinion, the appeal should be dismissed.

JUDGE2 PERRY J I agree with the reasons given by his Honour the Chief Justice, and that the appeal should be dismissed.

JUDGE3 DUGGAN J This was a most serious offence which appears to have had far reaching adverse consequences to the victim by reason of the head injuries he sustained. The circumstances of the crime disclose a deliberate assault motivated by a previous incident between the appellant and the victim. In my view the sentence, although a severe one, was not manifestly excessive, and I agree with the learned Chief Justice that the appeal should be dismissed. 2. I also agree with the learned Chief Justice's remarks about the desirability of acknowledging the extent to which a plea of guilty is taken into account in the sentencing remarks. Hitherto, it has not been a common practice for judges, when sentencing, to indicate the extent to which a plea of guilty has reduced the sentence. However, as the learned Chief Justice has pointed out, in recent times the Court of Criminal Appeal has underlined the desirability of such an explanation being included in the sentencing remarks. An early intimation of a plea of guilty assists the administration of justice in a number of ways, including obviating the need for witnesses to give evidence and, in addition, allowing for a more effective administration of criminal court lists. Identifying the extent to which it has reduced a sentence assists not only in explaining the basis of the particular sentence, but in fostering awareness of the circumstances which will lead to a reduction of sentence in other cases.