R v Thomas - [2004] NSWCCA 291

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Thomas [2004] NSWCCA 291

FILE NUMBER(S):
1750/04 (formerly 60144/04)

HEARING DATE(S): 16 August 2004

JUDGMENT DATE: 16/08/2004

PARTIES:
Regina (Respondent)
Brett David Thomas (Appellant)

JUDGMENT OF: Handley JA James J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0050

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
In person (Appellant)
B Knox SC (Crown)

SOLICITORS:
N/A (Appellant)
S Kavanagh (Crown)

CATCHWORDS:
Criminal law - sentence - no question of principle

LEGISLATION CITED:

DECISION:
1. Leave to appeal granted.
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 1750/04
HANDLEY JA
JAMES J
HOWIE J
16 AUGUST 2004

REGINA v Brett David THOMAS

Judgment

HANDLEY JA: The applicant was sentenced by Nield DCJ on 14 March 2003 for a number of offences which I will detail in a moment.
He seeks leave to appeal from those sentences.
He pleaded guilty in a Local Court to a charge that he maliciously inflicted grievous bodily harm on a Mr Gary Towns with intent to inflict grievous bodily harm. The offence occurred on New Years Day 2002 following a New Years Eve party at which a lot of intoxicating liquor had been consumed, not only by the applicant but also by Mr Towns and other persons present. He was remanded for sentence in the District Court.
He also pleaded guilty to charges that he had assaulted two police officers in the execution of their duty and was remanded for sentence in the District Court.
The applicant was represented at the sentencing proceedings and gave oral evidence before the Sentencing Judge. In addition, there were six offences before the Judge on a Form 1 under the Criminal Procedure Act. These related to driving offences of one form or another, and charges of resisting an officer in the execution of his duty and possessing a prohibited weapon in the form of handcuffs.
The Judge sentenced the applicant on the second s 51A document to a fixed term of six months for the assault upon Senior Constable Grant Hilder while in the execution of his duty, the sentence to run from 1 January 2002 to 30 June 2002.
For the second offence, on the second s 51A document, for the assault on Constable David Hamilton while in the execution of his duty, taking into account the Form 1 offences the applicant was sentenced to imprisonment for a fixed term of one year from 1 January 2002 to 31 December 2002.
Thus the two sentences were wholly concurrent.
For the offence involving the attack on Mr Towns, the applicant was sentenced to imprisonment for six years with a non-parole period of three years and six months. The non-parole period commenced on 1 January 2003 and is to expire on 30 June 2006.
The parole period is to commence on 1 July 2006 and expire on 31 December 2008.
The amended grounds of appeal filed by the applicant are six.
The first ground relies upon errors in the Judge's remarks on sentence and the inconsistency between some of those remarks and the sentence finally pronounced.
The second ground alleges that the sentencing Judge failed to take into account the applicant's state of mind at the time the crimes were committed. He had consumed considerable quantities of alcohol and illegal drugs immediately before the offences were committed, and this forms the factual substratum of this ground.
The third ground alleges that the sentencing Judge failed to take into account the fact that the applicant was provoked.
The fourth ground alleges error in imposing cumulative sentences insofar as the sentence for the assault on Mr Towns was made cumulative on the sentences imposed on the charges of assaulting police constables in the execution of their duty.
The fifth ground relates to the failure to observe the statutory ratio between the non-parole period and the head sentence.
The final ground relates to the Judge's failure to take proper account of the fact that the sentences would be served in protective custody as a result of unrelated matters.
There is no doubt that the Judge misstated the effect of his sentences on more than one occasion in the course of his remarks. This could be a serious matter in some circumstances, but in other circumstances it is open to a Court to find that the errors are mere slips of the tongue or errors of transcription.
In the present case, the Judge's intention is clear because of the formal written record he signed on 14 March, the same day as the oral sentences were pronounced.
This resolves any ambiguity that would otherwise arise and attracts what is known as the slip rule which enables a Court to give effect to its clear intention, and in doing so, to rectify any formal slips or errors.
The slips and errors are only in his Honour's oral reasons for imposing the sentences that he did, and the matter is made quite clear, as I have said, by the formal written record signed on 14 March.
I would reject the first ground.
The second ground relates to the applicant's state of mind at the time the offences were committed. The applicant had pleaded guilty to the charges in the two s 51A forms, and this necessarily admitted the states of mind which were elements of the various offences. The offence of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm was, of course, an offence of specific intent, but it was an offence to which the applicant pleaded guilty. He adhered to that plea when he appeared to be sentenced.
The applicant was legally represented at the sentence hearing and gave oral evidence before the sentencing Judge. Nothing was said in his oral evidence which cast doubt upon his plea of guilty to the more serious charge.
Before this Court there is no application to withdraw the plea of guilty and no sworn evidence relating to the specific intent which is an element of this charge.
The mere fact that the applicant was affected by illegal drugs and intoxicating liquor at the time this offence was committed does not establish the absence of the specific intent which is an element of this offence.
Likewise the fact that the applicant has very poor recall of the events of that night does not, of itself, establish the absence of the specific intent.
Since there has been a plea of guilty, no sworn evidence before the sentencing Judge or this Court to the contrary, and no application to withdraw the plea, the second ground must also be dismissed.
This necessarily disposes of the related ground that the absence of the specific intent was a special circumstance which should affect either the length of the head sentence or the proportion which the non-parole period should bear to the total sentence.
The third ground alleges that the learned sentencing Judge fell into error in failing to take into account the fact that the applicant was provoked into committing the offence against Mr Towns. This is a matter which could be taken into account on sentence, despite a plea of guilty, as provocation does not negative the existence of a specific intent. Nevertheless, no evidence was given before the learned sentencing Judge in support of a plea of mitigation based on provocation, and the material before this Court does not establish any relevant provocation.
The matters relied upon by the applicant in this Court amount to no more than this: That Mr Towns had been behaving aggressively towards his partner at the New Years Eve party prior to the offence being committed and , as described by the applicant, was in a provocative mood. This falls far short of establishing any actual provocation by Mr Towns to the applicant which could possibly mitigate this offence. There is no evidence that Mr Towns used any insulting words to the applicant or had any offensive weapon on his possession, or made any attempt to use it to harm the applicant.
The aggressive mood that Mr Towns had been exhibiting towards his partner at the party falls far short of establishing any relevant provocation which could mitigate the sentence which would otherwise be appropriate for this offence.
The next two grounds relate to the effect of making the sentence for the more serious offence cumulative on the sentences for the offences of assaulting constables in the execution of their duty.
Those two sentences, as I have said, were made wholly concurrent so that the longer of the two, which took into account the Form 1 offences, expired on 31 December 2002.
The sentence for the more serious offence was expressed to commence on 1 January 2003 and expire six years later with a non-parole period of three years and six months.
The offences against the constables occurred at a different point of time, at a different place and involved different persons. They occurred after the applicant had driven himself to the local police station apparently with the intention of turning himself in. It is hard to think of any other reason why he would have driven to the police station on the day in question.
The fact that the sentence imposed on the applicant for the offence involving Mr Towns was made wholly cumulative on the second of the earlier sentences, does not establish any error on the part of the learned sentencing Judge. The instructions in Pearce v The Queen (1998) 194 CLR 610 were not infringed. The learned sentencing Judge fixed separate sentences for each of the offences and then directed his mind to the question of their cumulation or concurrence. The two offences involving assaulting police constables were made concurrent. They occurred at the same time and place and it was entirely appropriate that they be made concurrent.
There was no necessity for the Judge to make the sentence in respect of the charge involving Mr Towns concurrent in whole or in part with those relating to the offences of assaulting police officers in the course of their duty.
I would, therefore, reject the fourth ground based on the decision in Pearce v The Queen.
The fifth ground relates to the ratio between the non-parole period and the head sentence in respect of the attack on Mr Towns, and the totality of the sentences imposed.
There was no breach of the statutory ratio in respect of the sentence imposed in respect of the attack on Mr Towns. In fact, the ratio was more favourable to the applicant than the statutory proportion being 65/35 rather than 75/25. In that respect no error has been established, certainly not one adverse to the applicant.
The earlier sentences for fixed terms did not attract an obligation to fix non-parole periods and the fact that the Judge made the sentence for the attack on Mr Towns wholly cumulative on the sentences for assaulting police officers did not evidence any error either in the sentences themselves or in the statutory ratio or in the extent to which the statutory ratio was varied.
I can discern no error in the Judge's approach or in the proportion between the non-parole period and the total sentence in relation to the more serious charge.
I would therefore dismiss the fifth ground.
The final ground relates to the fact that the applicant will be serving his sentence in protective custody.
This was the subject of evidence before the sentencing Judge and was a matter which he took into account. His remarks on sentence refer to the evidence about the protective custody which the applicant would receive for his own safety, and the Judge was aware that this would impose restrictions on the applicant which would make his imprisonment more arduous than that experienced by the general prison population. He found that the sentences would be more onerous for the applicant than they would be otherwise.
His Honour took this matter into account by reducing the non-parole period in respect of the sentence imposed for the attack on Mr Towns.
I can see no error in that regard. The matter was not overlooked. His Honour took it into account and his conclusion, in my judgment, was within the scope of his sentencing discretion.
I would, therefore, propose that leave to appeal be granted and that the appeal be dismissed.
JAMES J: I agree with the judgment of the presiding Judge and with the orders proposed by his Honour.
HOWIE J: I also agree. I just wish to make two short comments.
The applicant relied upon his level of intoxication as a mitigating factor so far as both the head sentence and non-parole period were concerned. The law rarely regards voluntary intoxication by alcohol as a mitigating factor when sentencing for serious criminal offences. Even more rarely, if at all, does it take into account, by way of mitigation, that the offender was intoxicated by reason of his or her voluntary consumption of illegal drugs.
In the present case there is much to support the proposition, in my view, that the applicant's voluntary use of the alcohol and drugs on the evening prior to the offence was an aggravating feature in light of his criminal record and the apparent connection between his use of alcohol and drugs and his violence.
As to the applicant's complaint about the order that the sentences be cumulative in respect to the sentence for the offence against Mr Towns and the offence against the police officers, I agree with the Presiding Judge that there is no error at all. The sentence of one year to reflect the criminality involved in the offences against the police and the matters on the Form 1 is arguably inadequate. It seems to me that His Honour took the course accepted as open to him in Johnson v The Queen (2004) 205 ALR 346 in the High Court following Mill v The Queen (1988) 166 CLR 59 rather than that suggested by Pearce v The Queen (1998) 194 CLR 610.
In my view, the non-parole period was a relatively lenient one, having regard to the seriousness of the assault upon Mr Towns, the applicant's criminal record and his lack of prospect for reform.
In my view, therefore, the appeal should be dismissed.
HANDLEY JA: The orders will be as I proposed.

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LAST UPDATED: 24/08/2004