R v McCrea & Robbins

[1994] QCA 386

IN THE COURT OF APPEAL [1994] QCA 386

SUPREME COURT OF QUEENSLAND

C.A. No. 272 of 1994. C.A. No. 291 of 1994.

Brisbane

[R v. McCrea]

[R v. Robbins]

T H E Q U E E N

v.

ADAM WARWICK McCREA	(Appellant)
and MICHAEL DEAN ROBBINS	(Applicant)

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Davies J.A. Pincus J.A. Cullinane J.

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Judgment delivered 05/10/1994

Judgment of the Court

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APPEAL AGAINST CONVICTION BY APPELLANT McCREA DISMISSED.

APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
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CATCHWORDS: CRIMINAL LAW - SENTENCE - EVIDENCE - first applicant convicted of doing grievous bodily harm and other offences - on appeal applicant sought to tender affidavit of psychiatric evidence not available at time of sentencing to explain facts before sentencing judge - evidence of possible consequence of drug therapy for psychiatric condition upon applicant's conduct - cogency of report - contradictory of report before sentencing judge - no attempt to explain conflict - whether sufficiently cogent to have real bearing on sentencing discretion.

CRIMINAL LAW - SENTENCE - second applicant convicted of assault occasioning bodily harm and other offences - whether ground for recognition of lesser role in commission of offences - whether effective sentence within permissible range.

Counsel:Mr J Jerrard Q.C. for the applicant McCrea.
Mr C J Clark for the applicant Robbins.

Mr J Henry for the respondent.

Solicitors:Robertson O'Gorman for the applicant McCrea.
Lewis and Struik for the applicant Robbins.

Director of Prosecutions for the respondent.

Date of hearing:16 September 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/10/1994

Each of the abovenamed was convicted after a trial in the

District Court on 21 June 1994 of entering the dwelling house of

Michael Offord with intent to commit an indictable offence

therein and assault occasioning bodily harm in company, that

being an assault of Michael Offord. McCrea was also convicted

of doing grievous bodily harm to Janene Offord, Michael Offord's wife, and Robbins was convicted of an assault occasioning bodily harm on Janene Offord. Robbins had earlier also pleaded guilty

to a charge of wilful damage committed on leaving the Offords'

premises. Each of the applicants was sentenced to three years'

imprisonment for the offence of entering with intent and also

for the offence of assault occasioning bodily harm. McCrea was

sentenced to four years' imprisonment for the grievous bodily harm offence and Robbins was sentenced to three years'

imprisonment for the assault occasioning bodily harm on Janene

Offord. Robbins was also sentenced to a cumulative term of

three months' imprisonment for the wilful damage offence. Both

applicants seek leave to appeal against their sentences. McCrea initially also appealed against his conviction but that appeal

was abandoned. We would therefore dismiss his appeal against

conviction.

All offences occurred on 28 November 1993 at about 8.00 pm at

the Offords' home at Craignish, into which they had moved only a few weeks before the commission of these offences. The facts

relevant to the commission of these offences were not in

dispute.

The Offords were in the habit of taking their dog, a Great Dane,

for an early morning walk and had experienced problems with a

Rottweiler in the neighbourhood. The Rottweiler, which appears

to have been owned by the McCrea family, used to charge out at

the Offords as they walked past. When this occurred on the

morning of the offences persons, other than the applicants, believed by the Offords to be the owners of the dog, were in the

vicinity. Mrs Offord, in speaking to them, threatened to ring

up the council if they did not lock their dog up.

At about 7.45 pm that night when the Offords were preparing for

bed they heard a noise outside. Mr Offord, clad only a towel,

went to investigate. He observed that the front gate was swinging loose and then saw McCrea crouched by it. Startled, Offord said, "What the fuck are you doing there?". McCrea stood

up, said, "You fucking cunt" and started punching Offord. As Offord tried to defend himself, Robbins appeared from behind

McCrea and said repeatedly, "Kill him".

Offord retreated to his house trying to fend off McCrea's

repeated blows to his head, losing his towel in the process. By this time he had received blows to his eyes, nose and jaw and was bleeding profusely by the time he made it to his front door.

As McCrea continued to punch him, Robbins continued saying, "Kill him, kill him". Offord was driven into the door jamb and slipped over in the area of the doorway. He was then punched and kicked about the head, throat, ribs and back, mainly by McCrea but on at least one occasion by Robbins.

About this time Mrs Offord, also clad only in a towel, came to

her husband's aid and tried to pull him inside the house.

McCrea pulled the towel off her and punched her in the face.

She fell backwards hitting her head against a wall and fell to

the floor. She tried to use the phone to ring the police but

Robbins dragged her away from it by her hair. Mrs Offord was

clutching at a bar stool trying to cover herself up as Robbins dragged her by her hair into the lounge. McCrea punched at her

head again while Robbins still held her hair.

One of the offenders also kicked the Offord's dog in the throat

saying, "Don't ever complain about that dog again". McCrea and Robbins left via the carport and Robbins used a fencing pipe to

smash the Offord's car windscreen and driver's side window as well as breaking the aerial and denting sections of the car's body work.

Michael Offord's injuries were two black eyes; swelling, bruising and tenderness to the left side of the face; a small

laceration in the right eye at the top of the lid;

subconjunctival haemorrhage in the eye; bruising around the neck at and above the Adam's apple; tenderness to the left shoulder and central chest; paraesthesia (numb sensation) to the infra- orbital region extending down to the lip and side of the nose; two fractures of the jawbone; a small break in the bones at the side of the eyeball; possible fracture in the left infra-orbital margin; and probability of blood in the sinus.

Janene Offord's injuries were a left infra-orbital contusion with swelling and bruising; swelling and bruising from the zygomatic arch down to the jaw; a superficial laceration to the left upper lip; paraesthesia under the left eye; a swollen lip;

a bruise on the right buttock; tenderness to the central chest; a fracture at the tip of the nose; a tender mouth which was difficult to open; a bad laceration to the inside lip; damage to

the gingival tissue, that is the tissue surrounding the teeth;

looseness of four upper teeth (incisors) which were beyond saving; and bad traumatisation of the periodontal tissue surrounding the roots of teeth.

The dentist's opinion was that Mrs Offord's injury, if left untreated, would result in permanent injury to health and that, even if it were treated, she would not be as efficient at chewing food as she had been before.

Both applicants were interviewed by the police. Each said that

they had called at the Offord's house to discuss the dog

incident and that it was Michael Offord who initiated the

violence. Neither gave evidence but that version was put to the complainants in cross-examination. More specifically it was put to Offord that, on that night, McCrea knocked on their front

door and when Offord answered it he, McCrea, asked what the problem was which Offord had with McCrea's mother and he

complained that Offord had abused his mother. It was put to Offord that he then abused McCrea and punched him in the face

and, in effect, that McCrea hit Offord only in the course of defending himself. It was put to him also that Janene Offord

was hit only accidentally when she tried to intervene between him and the applicant McCrea. We mention all this and the fact

that the trial extended over two full days because they indicate

a total lack of remorse on the part of both applicants. This is particularly relevant to the main basis for the application by

McCrea.

McCrea was 28 years of age at the time of commission of these

offences, having been born on 27 April 1965 and Robbins was then 30 years of age, having been born on 25 October 1963. Although

both have prior criminal histories, neither is relevant for the

purposes of this appeal. Nor did the learned sentencing judge consider them relevant for the purpose of the sentences which he imposed.

It was conceded on behalf of McCrea that the effective sentence

imposed upon him, which was a sentence of four years'

imprisonment for the offence of grievous bodily harm, was not

outside the appropriate range of sentences for the commission of an offence such as this consisting, as it did, of a sustained assault. His contention was that there is now available medical evidence, which was not available at the time of sentence, which further explains the facts put before the sentencing judge and shows them in a new light; and which helps make explicable what was an apparently inexplicable degree of violence used by the applicant when there was no discernible rational motive for the use of such prolonged and aggressive force. That evidence, it was submitted, was contained in an affidavit of Dr Ian Curtis, a psychiatrist, which the applicant sought leave to read and file

together with an affidavit of the applicant's father which

stated some facts upon which Dr Curtis' opinion was partly

based.

The evidence of Dr Curtis was not available to McCrea at the

time of his sentence. In summary, Dr Curtis said that drugs

which the applicant was taking for a depressive illness at the time of the commission of the offences might have had unintended

consequences including the assaultive behaviour which he exhibited. Upon the sentence hearing there was tendered a report from Dr May, the Director-General of Mental Health Services of the Wide Bay Region Mental Health Centre. It stated

that the applicant had been receiving intensive psychiatric

treatment for a severe anxiety disorder characterised by panic,

phobias and irritable mood. It said that he had been on

intensive drug therapy and as well receiving extensive

counselling and that he remained on that treatment at the time of the report which was 23 February 1994. The report also said that his altered mood state caused by his anxiety disorder may

have been a factor in his altered behaviour; that he was

normally a man of placid character. Submissions were made to the learned sentencing judge on the basis of that report that the applicant's psychiatric condition, for which he was

receiving treatment, contributed to his behaviour which was out of character. The point of Dr Curtis' evidence is that the drug therapy, rather than the applicant's pre-existing psychiatric

condition, may have contributed to his behaviour at the time of

commission of these offences.

Two aspects of Dr Curtis' evidence affect its cogency on this

application.

The first is that that evidence contradicts the report upon

which the learned sentencing judge relied; yet there is no evidence of what Dr May, who had apparently been responsible for the applicant's treatment for some time, thought of that

evidence. Dr May's report, whilst at least implicitly affirming the correctness of the treatment, raised the possibility that

the applicant's psychological condition nevertheless may have

contributed to his behaviour. The evidence of Dr Curtis, by contrast, suggests that the treatment may have contributed to his behaviour. Moreover, notwithstanding that the applicant's

solicitor spoke to Dr May, apparently in order to fully inform Dr Curtis, no attempt was made before this Court to resolve that

conflict. It does not appear, for example, whether Dr Curtis' opinion was ever put to Dr May. Yet Dr May, or at least his Mental Health Centre, was engaged in treating the applicant not

only with drug therapy but with extensive counselling; whereas Dr Curtis was engaged primarily for the purpose of giving

evidence for this appeal. It was plainly within the capacity of the applicant's representatives to put before this Court the

views of the treating doctor upon Dr Curtis' opinion.

Secondly, Dr Curtis' evidence, even if accepted, does not appear

to make the appellant's case any stronger on sentence than Dr

May's report. The report said that the applicant's altered mood

state caused by his psychiatric disorder may have affected his conduct on the night in question. Dr Curtis said that the treatment for that psychiatric disorder may have affected his

conduct on that night. Neither opinion was expressed as more than a possibility; and there was no evidence that the

consequences upon his conduct of the applicant's pre-existing psychiatric condition would have been any more under his control

than the consequences upon his conduct of the drug therapy.

Putting on one side the other elements of admissibility of

evidence such as this on appeal, and assuming that it is sufficiently cogent if it is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision (R. v. Goodwin (1990) 51 A. Crim. R. 328 at 330; R. v. Sukjai-Crawshaw CCA No. 60459 of 1993, the Court of

Criminal Appeal (NSW) 3 June 1994, unreported), that was not so here for the reasons we have given.

Moreover, as we have already mentioned, well after the

commission of these offences including up to and at the trial, McCrea asserted that Offord had been the aggressor and that he,

McCrea had simply acted in self defence. That continuing assertion appears inconsistent with a sudden and out of character piece of aggressive behaviour for which, it might reasonably be thought, the applicant would be immediately remorseful.

We therefore reject the affidavit of Dr Curtis and also that of the applicant's father which was to form the basis of part of Dr

Curtis' opinion. It follows that we must refuse the application

for leave to appeal by McCrea.

The substantial basis for the application by Robbins was that

the learned sentencing judge failed to give any recognition to the lesser role played by him in the commission of the offences.

In our view there is no substance in that contention. His

conduct went well beyond encouragement of McCrea. In particular it was he who dragged Mrs Offord by the hair and held her by the

hair whilst she was being hit by his co-offender. Having regard

to their respective roles and the sentence imposed upon his co-

offender, the sentence imposed upon him was in our view fully

justified.

The other point argued on behalf of Robbins was that, having

regard to the range of sentences imposed in other cases for like offences, the effective sentence imposed here was manifestly excessive. However, the cases cited in argument show the effective sentence was within the permissible range.

The application by Robbins must also therefore be refused.