R v Shepherd

[2003] NSWCCA 351

CITATION:	R v Shepherd [2003] NSWCCA 351
HEARING DATE(S):	24/11/03
JUDGMENT DATE:	28 November 2003
JUDGMENT OF:	Meagher JA at 1; Kirby J at 2; Shaw J at 46
DECISION:	Leave to appeal granted; Appeal allowed; The sentence in respect of Count 2 imposed 17/12/02 is quashed; In lieu a sentence of 2 years imprisonment to date from 8/10/02 and expiring 7/10/03; A non parole period of 1 year expiring 7/10/03
CATCHWORDS:	Criminal Practice & Procedure - Malicious wounding - whether a wounding - sufficiency of evidence - wounding amounting to a split lip caused by a punch - whether sentence excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Savvas v The Queen (1995) 183 CLR 1 R v Stokes and Difford (1990) 51 A Crim R 25 R v Fernando (1992) 76 A Crim R 58 R v Newman (1948) ALR 109 R v Smith (1837) 8 Carrington & Payne 173 R v Bullock (1868) LR 1 CCR 115
PARTIES :	Regina Robert Shane Shepherd
FILE NUMBER(S):	CCA 60249/03
COUNSEL:	G Rowling (Crown) Ms A Francis (App)
SOLICITORS:	C. K. Smith (Crown) S O'Connor (App)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/0175
LOWER COURT JUDICIAL OFFICER :	Finnane DCJ

60249/03

MEAGHER JA
KIRBY J
SHAW J

Friday 28 November 2003

REGINA -v- Robert Shane SHEPHERD

Judgment

1 MEAGHER: I agree with Kirby J.

2 KIRBY J: Robert Shane Shepherd (the applicant) pleaded guilty before Finnane DCJ at Broken Hill on 12 December 2002 to the following offences:

· Count 1: Affray, contrary to s93C Crimes Act 1900 (the Act), the maximum penalty being 5 years imprisonment.

· Count 2: Malicious Wounding, contrary to s35(a) of the Act, the maximum penalty being 7 years imprisonment.

3 On the first count, his Honour imposed a sentence of imprisonment for one year (commencing on 8 April 2002), with a non parole period of 6 months (to expire on 7 October 2002). On the second count, his Honour sentenced Mr Shepherd to imprisonment for 3 years 9 months to commence on 8 October 2002 and to expire on 7 July 2006. He fixed a non parole period of 2 years to expire on 7 October 2004.

4 No complaint is made in respect of the first count. The sentence has been served. Mr Shepherd seeks leave to appeal against the sentence imposed on Count 2.

5 The appeal has had a somewhat unusual history. Before going to that history, I should first describe the circumstances giving rise to these charges.

The Incident

6 Mr Shepherd was one of three or four individuals involved in a brawl at a cafe attached to the Shell Service Station at Wilcannia. The incident took place shortly after 8.00 pm on 7 April 2002, as the cafe was about to close. Steven Williams and Steven Bugmy were also charged.

7 Mr Shepherd and his companions had, during the course of the day, drunk a number of casks of wine. He went to the cafe and asked for two dim sims. It was plain to the shopkeeper that he had insufficient money. He asked for credit, which was refused. He then began shouting angrily at the person behind the counter. His actions and words were captured on video surveillance maintained at the premises.

8 Mr Shepherd left the premises, promising to return. He did so a short time later. He was accompanied by Messrs Williams and Bugmy. Finnane DCJ, who saw the video, described what happened in these words:

"Things got out of hand after the initial affray. It is obvious from the video that Mr Shepherd and Mr Williams kept coming in and out of the shop. The arguments kept getting louder and louder. Mr Williams produced a knife. He said in evidence here that he carried this knife for his protection. It would appear that he feared retribution being wreaked upon him by members of his own family in Wilcannia for reasons connected with family matters and he was generally fearful of attack at the hands of others. He however had no justification in carrying the knife, much less did he have any justification in producing it.
Mr Shepherd and Mr Williams at one point shown in the video, after Mr Bellos has got a baseball bat and produced it with a view to frightening them off, they are shown abusing him, retreating somewhat, coming back again and then retreating from the shop. Mr Shepherd picked up what appeared to be a garbage tin from outside the shop, came into the shop, Mr Bellos at this stage was in front of the counter, and threw it at him. That knocked him backwards and he lost control of the baseball bat. Mr Bugmy then attacked him, using the sort of tackle that a rugby league player might use and obviously drove him back some distance and onto the floor where he was out of sight of the camera.
Mr Williams raced up with his knife. What then happened was that Mr Bellos was bashed with a baseball bat and stabbed with a knife. Mr Williams did the stabbing. Mr Shepherd was hanging back a bit but then joined in the fray. What part he actually played is completely unclear. Mr Bellos could not really clearly distinguish who was doing what. He did not know any of these people. It is clear Mr Shepherd did run forward to join in the fray but whether he in fact landed a blow or did anything is unclear to me. Certainly he was providing assistance to those who were landing blows and he is thus as guilty as they because he was assisting them in doing what they were doing and the law makes that provision, if you join in with somebody else and help that other person commit a crime you are guilty of the crime yourself."

9 The shopkeeper, Mr Bellos was taken to hospital. He had a 1 cm stab wound to the left scapula region, requiring four stitches under local anaesthetic. He had a further laceration to the right parietal region, likewise requiring four stitches. There was a further 1 cm laceration to his left lower lip and a 0.5 cm laceration to the mucus membrane of his left upper lip.

10 The co-offender, Steven Williams, was dealt with by the sentencing Judge at the same time. He, like Mr Shepherd, had been charged with affray. However, unlike Mr Shepherd, Mr Williams was charged with the more serious offence of wounding with intent to do grievous bodily harm (s33 of the Act). The maximum penalty for that offence is imprisonment for 25 years. As stated, the maximum penalty in respect of the charge of malicious wounding (s35(1)) against Mr Shepherd was 7 years.

Appeal before the Court of Criminal Appeal

11 An application was lodged on behalf of Mr Shepherd seeking leave to appeal against the sentence in respect of Count 2 upon the following grounds:

1. His Honour erred in considering the role the applicant played in the offence by finding that the applicant was 'as guilty as' the co-offenders in circumstances where one co-offender was being sentenced for a more serious offence.

2. The learned sentencing Judge gave insufficient weight to the applicant's subjective case.

3. The sentence is manifestly excessive in the circumstances of this case.

12 The appeal was listed for argument before the Court of Criminal Appeal on 17 November 2003 (Handley JA, Grove and Adams JJ). However, the Court declined to deal with the matter until counsel had obtained specific instructions in respect of a particular issue. The issue concerned the sufficiency of the material before the sentencing Judge to sustain a plea of guilty to the charge of malicious wounding. It is convenient, at this point, to go to the evidence relating to that issue.

13 When the matter proceeded before Finnane DCJ, there was no agreed statement of facts. Instead, the Crown tendered the surveillance video and a number of documents. Mr Shepherd then gave sworn evidence and was cross examined. On the basis of that material, his Honour was obliged to make such findings of fact as were relevant to the sentencing discretion (Savvas v The Queen (1995) 183 CLR 1).

14 Here, it was clear that the co-offender, Mr Williams, had a knife concealed in his pocket. It was also clear that Mr Williams produced the knife and stabbed Mr Bellos. The issue, so far as Mr Shepherd was concerned, was whether there was evidence that he knew that Williams had a knife, and must therefore have contemplated the possibility that he may use it.

15 Part of the material tendered before his Honour included a Police interview with Mr Shepherd. After acknowledging having seen Mr Bellos attacked with a baseball bat, Mr Shepherd said this:

"A282 And I sort of had my back turned, sort of, talking to someone.
Q283 Do you know who they were hitting?
A No, I can't remember. I don't know what it was hitting, I think it was old fella, sort, not the old fella, not that old, sorta.
Q284 And what were they hitting him with?
A Baseball bat and something else.
Q285 And something else?
A Knife, I think or something they had.
Q286 Where did they get a, who had the baseball bat?
A I don't know.
Q287 And you say there was a knife?
A ...
Q288 Right, and did you see a knife?
A No, I never seen no knife."

16 The Police ultimately put to Mr Shepherd the specific allegation, which formed part of the Crown case, that he knew about the knife.

"Q339 With Steven Williams and Raymond Hunter for the purpose of either starting a fight, taking something, a robbery, OK. I'll also put it to you that you knew that Raymond, that Steven Williams has been carrying this knife around, a rather large knife, you've helped them in the, when they've gone into the service station, you've helped them.
A. No."

17 The Police later returned to the same issue. The following exchange took place:

"Q353 And Steven Williams taking a knife from somewhere on his person, on his, on his body, taking a knife from somewhere that he had hidden there.
A. I don't know, I sorta just can't remember that there.
Q354 OK.
A So, that, that was sorta, they was coming too quick, them ...."

18 When Mr Shepherd gave evidence before the sentencing Judge, he said this: (T 9)

"WILSON: Q When you were in the shop did you see on the video that Mr Williams had a knife?
A No.
Q You didn't see that. Did you see it today on the video?
A Yeah.
Q At the time you were in the shop did you see the knife?

A No.

Q You heard about it later that there was a knife?
A Yeah. The very next morning I heard."

19 Mr Shepherd was cross examined. The transcript included the following exchange: (T 22)

"Q You've seen the video today haven't you?
A Yes.
Q And you can see yourself standing there next to Steven Williams when he's holding a knife up at about head height?
A Yes.
Q And you're right next to him?
A Yes.
Q And you're saying you didn't know abut the knife that night?
A No.
HIS HONOUR: Q You didn't know about the knife or you don't remember it?
A I don't remember it. Didn't even know about the knife.
BAILEY: Q I'm sorry?
A I didn't even know about the knife.
Q Mr Shepherd you know they're two different things, no remembering and not knowing, do you understand that?
A Yes.
Q Well which one is it?
A I don't know abut the knife, I didn't know."

20 At the time of the cross examination, his Honour made a remark, recorded in the transcript, that Mr Shepherd must have known about the knife.

21 However, in his sentencing remarks, having described the state of inebriation of Mr Shepherd and others, his Honour said this: (Sentence p 10)

"He has never actually seen film of himself drinking before, he has seen other people in the film, he is seen acting in a very excitable and quite irrational way, shouting and yelling and screaming at the top of his voice. He claims he did not know Mr Williams had the knife and that is possible. It is also possible on the night he did know but because of some form of alcoholic blackout he does not remember. It is hard for me to know what the truth is. It is pretty clear anybody standing in the shop would have seen Mr Williams with a knife unless they had their back to him because he had it very clearly displayed."

22 Mr Shepherd did say to the Police more than once that for much of the incident he had his back turned, talking to someone.

Requirements under s35(1)

23 Section 35(1) of the Act is in these terms:

" s35 Malicious wounding or infliction of grievous bodily harm
(1) Whosoever maliciously by any means:
(a) wounds any person; or
...
shall be liable to imprisonment for 7 years."

24 The person wounded was the shopkeeper, Mr Bellos. It was not suggested that Mr Shepherd had personally inflicted those wounds. To succeed on the count of malicious wounding, the prosecution was obliged to prove the following (cf R v Stokes and Difford (1990) 51 A Crim R 25):

· First, that Steven Williams intended to strike the victim causing injury.

· Second, that such injury would involve a wounding, that is, the breaking of the skin.

· Third, that knowing these things, Mr Shepherd intentionally assisted or encouraged Steven Williams to commit the offence.

25 Essentially, the Crown was obliged to prove that Mr Shepherd knew or foresaw the possibility that Mr Bellos, the shopkeeper, would be wounded in the course of the attack or assault by Steven Williams. As the case was presented before Finnane DCJ, in practical terms, that meant the Crown needed to prove that, at some point before the attack (and it need not be long before), Mr Shepherd knew that Williams had a knife, such that it might be inferred that he foresaw the possibility that it may be used when physically attacking the shopkeeper, and knowing these things, he, nonetheless, by his presence or actions, assisted or encouraged the attack.

26 The closest Mr Shepherd came to admitting knowledge of the knife is in answer to Questions 284 and 285 above. However, his answers are consistent with a description of what he ultimately saw, rather than foreknowledge. It is unsurprising, therefore, that his Honour did not feel himself able, on this evidence, to find beyond reasonable doubt that Mr Shepherd knew that Steven Williams had a knife, or contemplated, as a reasonable possibility, that Williams may use a knife.

The adjourned Appeal

27 The matter came before the Court of Criminal Appeal (as presently constituted) once more on 24 November 2003. Counsel for the applicant said that she had discussed with the Crown whether there had been evidence before the learned sentencing Judge of a wounding. It was their joint view that there was such evidence, namely, the reference in the hospital notes to "a 1 cm laceration to his left lower lip and a 0.5 cm laceration to the mucous membrane of his left upper lip." The matter was to be approached upon the basis of the applicant's complicity in that wounding.

28 The applicant therefore adhered to his plea of guilty to the second count. He wished to proceed with his appeal against the severity of the sentence. The appeal was then argued upon that basis. Counsel for the applicant drew attention to the strong subjective case presented on behalf of the applicant, and the relevance of R v Fernando (1992) 76 A Crim R 58. It was submitted that the sentence imposed in respect of the second count, 3 years 9 months imprisonment with a non parole period of 2 years was manifestly excessive. The Crown submitted that the sentence, although within the top 18% of the range, was within sound sentencing discretion.

29 However, I have some difficulty with the approach which has been taken by the Crown and the applicant alike. First, the Crown case on sentence, as presented to his Honour, had nothing to do with complicity arising from a split lip to the shopkeeper, which was no doubt the consequence of a punch thrown by Mr Williams. It was the Crown case on sentence that Mr Shepherd knew about the knife concealed by Mr Williams. He must therefore be taken to have had in contemplation the possibility of its use in the course of the brawl which developed. His Honour dealt with the matter upon that basis. He was not able to find beyond reasonable doubt that Mr Shepherd had such knowledge.

30 Having rejected that contention, his Honour did not then deal with Mr Shepherd upon the basis of his having been present and encouraging Mr Williams to inflict a wound by means of a punch to the mouth of the shopkeeper.

31 Secondly, it is instructive to examine what may amount to a "wounding" for the purposes of the offence of malicious wounding under s35(1) of the Act. The term is not defined by the Act. A wounding is generally assumed to be "the infliction of an injury which breaks the continuity of the skin" (cf R v Newman (1948) ALR 109 at 110). In R v Smith (1837) 8 Carrington & Payne 173, the prisoner was charged with assault, cutting and wounding the victim on the left side of the face. It was the Crown case that he had struck the victim with a hammer, breaking his jaw in two places. The hospital reported that the skin was broken internally, but not externally. The issue arose whether that was "wounding" within the Statute. The Court held it was. The case is generally cited for the following proposition (see Howie & Johnson, "Annotated Criminal Legislation of NSW" (2002/2003 Ed)): (p 653)

"'Wounds' is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient."

32 A wound may be inflicted by a fist. No instrument or weapon need be used (R v Bullock (1868) LR 1 CCR 115, per Coxburn CJ at 117). However, a split lip or, as here, upper and lower lips, inflicted by a punch, is a "wounding" only in the most technical sense. I repeat it was not the case presented by the Crown.

33 Thirdly, the course of this appeal demonstrates the difficulties that can arise where there is no agreement about the fundamental facts which underpin the plea. If the wounding was the injury to Mr Bellos' lips, there was latent duplicity in the indictment. The indictment was capable of referring to a wounding inflicted by knife, as well as that inflicted by Mr Williams' fist. The Crown, if asked, would have been obliged to elect. Can it be doubted that it would have elected to proceed upon the allegation that the wounding was inflicted by Mr Williams by means of the knife? I find it difficult to imagine that the Crown would have separately indicted Mr Shepherd in respect of the wounding arising from Mr Williams' punch. There is artificiality therefore in approaching the matter upon the basis now suggested.

Was the sentence excessive?

34 However, the applicant has not chosen to seek leave to file a Notice of Appeal against conviction, or to raise these issues on this appeal. The issue which remains, therefore, is whether the sentence imposed by his Honour was excessive.

35 In dealing with that issue, a contrast must be made between Mr Williams and Mr Shepherd. It was Mr Williams who carried the concealed knife which he then used to stab Mr Bellos a number of times. Accordingly, as mentioned, Mr Williams was charged with the far more serious offence of malicious wounding with intent to inflict grievous bodily harm (s33 Crimes Act 1900), carrying a maximum penalty of 25 years imprisonment. Mr Williams, unlike Mr Shepherd, had an extensive criminal history. Although not adverting to the difference in the offences which each faced, his Honour said this of Mr Williams:

"Of the two men before me today I have to regard Mr Williams as the more serious offender. He is an older man than Mr Shepherd. He was born on 10 December 1969, that makes him 33 years old."

36 Mr Williams is an Aboriginal, as is Mr Shepherd. Like Mr Shepherd, he had a deprived upbringing. The considerations referred to by Wood J in R v Fernando (supra) applied to both. His Honour imposed a sentence of 7 years imprisonment with a non parole period of 4 years upon Mr Williams, in respect of the charge of malicious wounding with intent to do grievous bodily harm.

37 His Honour then came to deal with Mr Shepherd. In respect of Mr Shepherd he said this:

"In relation to Mr Shepherd because of his comparative youth, the fact that much older men were involved in heating this matter up far beyond the level to which it should have got and that he, to an extent, was led along by them in my opinion, I intend to give him lesser sentences. I take into account all the factors I have mentioned before including the plea of guilty, his Aboriginality and all the other matters to which I have referred."

38 His Honour later said this:

"In relation to the malicious wounding I am imposing a sentence of three years and nine months. That offence is a very serious matter. But for my taking the view that I have, he would have got five or six years for this offence, however I have decided to impose a sentence of three years and nine months. Because of his youth also and the other factors I have mentioned, I am reducing the non parole period to one of two years."

39 Having determined he was not satisfied that Mr Shepherd knew of the knife, his Honour was obliged to deal with Mr Shepherd upon the basis that he knew, or foresaw, the possibility that his companion, Mr Williams, may strike the shopkeeper with his fists, and thereby wound him.

40 In an offence where the maximum penalty was 7 years imprisonment, and where that maximum must encompass such things as the use of a weapon to stab, it is difficult, with respect, to view this case as one where a sentence of "5 or 6 years" could possibly be regarded as appropriate. His Honour acknowledged that the applicant had pleaded guilty at the first opportunity. Although his Honour did not fix the allowance which he had made for that plea, a conventional figure would be 25%. Taking that into account, as well as the basis available to his Honour in sentencing Mr Shepherd (namely his complicity in the wounding of Mr Bellos by means of a punch), I believe the sentence was manifestly excessive. Error therefore has been shown.

Resentencing

41 An affidavit of 19 November 2003 from the applicant was relied on in the event that this Court was called upon to resentence. The applicant has used his time in gaol well. He was, at the time of sentence, illiterate. He has greatly improved his reading and writing skills. He has undertaken other programs offered by the gaol.

42 When sentenced, Mr Shepherd was subject to a good behaviour bond of 12 months imposed on 9 June 2001. That bond was current, therefore, at the time of the offence. That was a circumstance of aggravation. It was, however, the only criminal conviction at that time, that is, 7 April 2002. Some months after that date, Mr Shepherd was also sentenced in respect of certain driving offences, including driving with a middle range concentration of alcohol. I would regard the criminality demonstrated by his involvement in the malicious wounding as at the lower end of the scale. His subjective case was strong.

43 The non parole period in respect of the affray expired on 7 October 2003. His Honour directed that the sentence for malicious wounding should commence the following day, 8 October 2003. In resentencing I believe the same commencement date is appropriate.

44 It is implicit in the approach taken by his Honour that he found special circumstances. The non parole period which he imposed in respect of Count 2 exceeded the appropriate statutory period in the absence of a finding of special circumstances (s44(2) Crimes (Sentencing Procedure) Act 1999). I, likewise, believe that a finding of special circumstances is appropriate. Mr Shepherd is likely to benefit from supervision by the Probation and Parole Service. The circumstances of this offence, and of his criminal record, suggest a problem with alcohol, which such supervision may well assist.

Order

45 I would therefore propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence in respect of Count 2 imposed by Finnane DCJ on 17 December 2002 is quashed and, in lieu thereof, the applicant is sentenced to 2 years imprisonment to date from 8 October 2002 and expiring on 7 October 2004. I would fix a non parole period of 1 year expiring on 7 October 2003. Mr Shepherd should therefore be released to parole.

46 SHAW J: I agree with Kirby J.

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Last Modified: 12/01/2003