R v Stebbings

[2001] NSWCCA 262

CITATION:	R v Stebbings [2001] NSWCCA 262
FILE NUMBER(S):	CCA 60596/00
HEARING DATE(S):	02/07/01
JUDGMENT DATE:	2 July 2001
PARTIES :	Regina v Brett John Stebbings
JUDGMENT OF:	Adams J at 24; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/51/0186
LOWER COURT JUDICIAL OFFICER :	District Court

COUNSEL :	(A) P Strickland (C) L M B Lampratti
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor
CATCHWORDS:	Sentencing - excessive sentence for assault occasioning actual bodily harm - need for proportionality
LEGISLATION CITED:	Nil
CASES CITED:	Thomson & Houlton 49 NSWLR 383
DECISION:	Leave to appeal granted - Appeal allowed - Sentence imposed quashed - in lieu applicant sentenced to imprisonment for a period of two years six months to commence on 10 April 2000 and to expire on 9 October 2002 with a non-parole period of 15 months to commence on 10 April 2000 and to expire on 9 July 2001 - the applicant is to be released omn parole on the expiry of his non-parole period.

IN THE COURT OF
CRIMINAL APPEAL

60596/00

ADAMS J

SMART AJ

Monday, 2 July 2001

REGINA v BRETT JOHN STEBBINGS
JUDGMENT

1   SMART AJ : Brett John Stebbings seeks leave to appeal from the District Court against the severity of a sentence of imprisonment of 4 years with a non-parole period of 2 years for the offence of assault occasioning actual bodily harm. The applicant pleaded guilty to this offence. He was acquitted by a jury of the more serious offence of malicious wounding of his de facto wife. The sentence commenced on 10 April 2000.

2   The applicant's de facto wife drank quite extensively. She insisted that her drinking took place away from the two children and that they were not endangered. The applicant asserts that after visiting hotels or clubs she would pick up the children on the way home. She often had the keys of the car. The applicant strongly objected to her driving under the influence of intoxicating liquor when she had the children in the car. On 26 May 1999 the applicant's de facto wife had been drinking. The applicant and his de facto wife had a major row over the car keys and her driving or attempting to drive with the children in the car after she had been drinking alcoholic liquor.

3   The applicant hit his de facto wife with considerable force and she sustained a black left eye and swollen left cheek. He denied punching her. He described it as a back-hander. The judge accepted that evidence.

4   Unfortunately, the evidence of the de facto wife was vague and in some respects unsatisfactory. She could not remember what led to the incident or the details of it apart from being hit. The offence was committed whilst the applicant was on parole, and indeed shortly after his release from custody.

5   The applicant was born on 26 July 1970. He has quite a long criminal record which began in 1987. There have been many offences including disorderly behaviour, break, enter and steal, assaults, possessing unlicensed concealable firearm, driving offences and drug offences. In May 1990 he was sentenced to four months imprisonment for an aggravated assault occasioning actual bodily harm. In September 1995 he was sentenced to three months imprisonment for a similar offence. In January 1997 he was sentenced to 2 months imprisonment for assault, beat and ill treat. On 18 May 1998 he was sentenced to a minimum term of 12 months and an additional term of 4 months for maliciously inflicting grievous bodily harm. The subject offence was thus committed very shortly after his release from gaol. Even after his arrest on 2 June 1999 he committed further offences for which he was punished by the courts.

6   The applicant came from a dysfunctional family. He had an unfortunate childhood and his teenage years were marred by an unhappy home, his rebellious acts and drug and alcohol abuse. Further, his life has been subjected to major trauma. His de facto wife had experienced significant trauma in her life including the murder of her older son. Both the applicant and his de facto wife were emotionally disturbed to a considerable degree.

7   Mr I F McCombie, psychologist, in his report of 21 August 2000 wrote of the applicant:

"He appeared to be of low average intellectual potential and to have low average verbal skills. He appeared to be suffering from cognitive problems consistent with a stroke - experiencing word finding, concentration, memory and planning problems."


8   The psychologist said that the applicant was quite tense, anxious, agitated and dissociated. The applicant stated that he became quite emotionally disturbed on his release from gaol in May 1999. He ceased taking the medicine which had been prescribed. That had been prescribed to address his heroin abuse - methadone, his anxiety, depression and his psychosis.

9   The applicant told the psychologist that during the period he had spent in gaol since 2 June 1999, the date of the alleged stabbing of which he was acquitted, he had been treated with Epilim to control his epilepsy and seizures, mood disturbance and anger outbursts, and with Zyprexa to control his psychotic illness, his depression, his mood disturbance and his anxiety. He felt these drugs had made a great difference to his life, giving him control over his thoughts, emotions, behaviour and moods.

10   The applicant had been on a disability support pension for some years as a result of a stroke. He hoped to be able to re-enter the workforce as a fibro-glass moulder.

11   The psychologist expressed this opinion:

"… at the time, Mr Stebbings was suffering from effect of his past alcohol intake, the effect upon him of the exacerbation of his pre-existing emotional problems and his low impulse control which is a product of his stroke/head injury."

12   The psychologist thought that the applicant suffers from a recurrent major depressive disorder of moderate severity, cognitive disorder, mild neurocognitive disorder, substance dependence, psychotic disorder and borderline personality disorder.

13   The psychologist stated that the applicant in response to the disorders from which he was suffering, had a limited control over his emotions and behaviour. He was very impulsive. The psychologist further stated:

"… His disorders will continue to affect his ability to carry on his life in a rational fashion, for the remainder of it."


14   The psychologist thought the applicant needed considerable treatment and assistance. He made specific recommendations for treatment.

15   The judge gave the applicant a discount of five per cent for the plea of guilty because the plea was entered at trial. However, the applicant, in his record of interview, did state that he had given his de facto wife a back-hander. Most attention was paid to the other more serious charge relating to the events of 2 June 1999. The discount of five per cent allowed for the plea of guilty was too low. The applicant spent two initial periods in pre-sentence custody in relation to the offence and the offence of which he was acquitted. The latter, if proven, was more serious as it involved a stabbing. The first period was from 2 June 1999 to 17 August 1999, a period of 76 days and the second from 10 April 2000 to 24 August 2000. As the sentence dated from 10 April 2000 this latter period need not be considered further. There was a third period, namely 10 to 16 March 2000. The applicant was arrested on 10 March 2000 because of a breach of his bail undertaking, he was granted bail again on 16 March 2000. I have taken all these periods of pre-sentence custody into account in proposing the orders later mentioned.

16   The applicant contends that his effective head sentence was four years 76 days and his effective non-parole period was 2 years 76 days bearing in mind his acquittal on the more serious charge. While the applicant's record did not assist him there were compelling subjective features. The disorders from which he suffers provide an explanation for much of his conduct.

17   The judge found that the applicant had used his hands and no implement, that the act was not premeditated and not repeated. The judge did not suggest that the injuries were permanent. He was moved by there being a violent assault that caused serious harm to the de facto wife and the offence having been committed whilst the applicant was on parole. These were major matters. I agree that assaults of the kind in question must be firmly discouraged and severely punished. However, the sentence imposed was out of proportion to the offence committed. The sentence was manifestly excessive and not within the permissible range for the act done.

18   It falls to this Court to re-sentence the applicant.

19   Since sentencing he has had further problems. By letter dated 25 June 2001 Dr P B Paisley of the Corrections Health Service has certified that the applicant has recently been diagnosed as having non-insulin dependent diabetes. On 3 June 2001 he was discharged from Auburn Hospital after investigation of chest pain. He was given medication for angina. In February 2001 he suffered an epileptic fit and he was kept under review.

20  In a further affidavit filed today the applicant has deposed to further health problems, particularly schizophrenia. He deposes to having been treated for this condition and progressing well in custody. He has also deposed to the work that he has been doing in prison and this is commendable.

21   Special circumstances exist. These include the disorders and health problems of the applicant and the need for extended supervision and treatment on his release. One matter that makes this case so difficult is the record of the applicant and particularly the offence for which he was released on parole shortly before he committed the subject offence The applicant has already spent 14 months and 23 days in custody. If even some of the 76 days is taken into account he will serve well in excess of 15 months in gaol. That is a more than adequate penalty for this particular offence.

22  In the whole of the circumstances I am persuaded that there should be a sentence of imprisonment for 2 years 6 months with a non-parole period of 15 months. I would emphasise that this reduction in sentence should not be seen as any encouragement to physical violence perpetrated upon ladies. That must be discouraged and the applicant should heed the stern warning from this Court that if there is any repeat of this conduct he can expect to be dealt with even more severely. In dealing with the applicant's release on parole there is a need for special conditions which ensure that he undergoes the medical, psychiatric and psychological treatment and counselling that is required. Some of that is outlined in Mr McCombie's report. It is imperative, of course, that the applicant be supervised to ensure that he takes his medication.

23   I would propose the following orders:


1. Leave to appeal be granted.

2. Appeal allowed.

3. The sentence imposed in the District Court be quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for a period of 2 years 6 months to commence on 10 April 2000 and to expire on 9 October 2002 with a non-parole period of 15 months to commence on 10 April 2000 and to expire on 9 July 2001.

4. The applicant be released on parole on the expiry of his non-parole period.


24   ADAMS J: I agree with the orders proposed by Smart AJ. I wish to add an observation of my own concerning the application by his Honour of the judgment of this Court in Thomson (2000) 49 NSWLR 383 . As the Court was at pains to explain, the purpose of express reference to the amount by which a sentence following a plea of guilty would be reduced was the utilitarian advantage to the due administration of justice inhering by pleas of guilty in appropriate cases. The Court also expressed interest in the reduction, so far as possible, of the unhappy effects on victims who are required to give evidence if an unnecessary trial proceeds. It is clear that even a plea at the commencement of a trial will, in the usual case, require a discount of ten per cent which is the bottom of the discount proposed in the guideline judgment Unless the circumstances are special, to reduce that figure by a significant margin is to undermine the specific purpose to which the Court has directed its judgment.

25   In this case, there is nothing in my opinion which could have appropriately led to a discount less than that proposed as the lowest by this Court in Thomson . The plea of guilty also spared the victim from the need to give evidence in relation to what would have undoubtedly been a distressing situation. Smart J has observed that the five per cent discount given in this case by his Honour was inadequate. If I may say so, with respect, that observation is entirely justified.

26   The orders of the Court will be as his Honour has proposed.

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