R v Wright - [2009] NSWCCA 3

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Wright [2009] NSWCCA 3

FILE NUMBER(S):
2008/1968

HEARING DATE(S):
2 February 2009

JUDGMENT DATE:
3 March 2009

PARTIES:
Regina
WRIGHT, Lila

JUDGMENT OF:
McClellan CJatCL James J Adams J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
08/11/0106

LOWER COURT JUDICIAL OFFICER:
Sweeney DCJ

LOWER COURT DATE OF DECISION:
22 August 2008

COUNSEL:
PM Miller - Appellant
CJG Smith - Respondent

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
S O'Connor (Legal Aid Commission)

CATCHWORDS:
CRIMINAL LAW — Sentencing — Crown appeal against sentence — malicious wounding with intent to cause grievous bodily harm — joint criminal enterprise

LEGISLATION CITED:
Crimes Act

CASES CITED:
GAS v The Queen (2004) 217 CLR 198
R v Cotter & Ors [2003] NSWCCA 273
R v Mitchell, R v Gallagher [2007] NSWCCA 296
R v Mulato [2006] NSWCCA 282
R v Wall [2002] NSWCCA 42
R v Anderson [2008] NSWCCA 211

TEXTS CITED:

DECISION:
Crown appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/1968
McCLELLAN CL at CL
JAMES J
ADAMS J
FRIDAY 27 FEBRUARY 2009

R v WRIGHT, Lila

Judgment

McCLELLAN CJ at CL: I have had the benefit of reading the judgment of James J in draft. This is yet another case where this Court has been required to consider the appropriate penalty when a young person who has consumed a quantity of alcohol inflicts physical violence of a significant order on another. The facts of this case are not unusual. So far as the criminal law is concerned those who engage in such conduct must understand that the courts will impose significant penalties.
The sentence imposed on the respondent in the present case was lenient and may have warranted intervention by this Court. However, I agree with James J that the Crown appeal should be dismissed. In so doing it should be understood that the sentence imposed in this case will be of little, if any, utility when other judges are sentencing offenders for similar offences.
JAMES J: This is an appeal by the Crown against a sentence imposed on the respondent by her Honour Judge Sweeney in the District Court on 22 August 2008 for an offence committed on 24 September 2006 of maliciously wounding with intent to cause grievous bodily harm, to which the respondent had pleaded guilty. Her Honour imposed a sentence consisting of a non-parole period of two years six months and a balance of the term of two years, making a head sentence of four and a half years. Her Honour made the sentence she imposed commence from 8 April 2008, to allow for a period of four months 14 days which the respondent had spent in pre-sentence custody between the date of his arrest on 24 September 2006 and the date of his release on bail on 7 February 2007.
Wounding with intent to cause grievous bodily harm is an offence under s 33 of the Crimes Act for which the maximum penalty is imprisonment for 25 years. There is a standard non-parole period of seven years.
In the proceedings on sentence the Crown brief, which included a very long statement of facts, was admitted into evidence without objection and her Honour noted in her remarks on sentence that the contents of the statement of facts were not disputed. In her remarks on sentence her Honour summarised the statement of facts in a way which was not the subject of any criticism on this appeal and I will now set out her Honour’s summary.
“On the evening of 23 September 2006 Lee Bell, Gary Bell and Andrew Hill were socialising and drinking alcohol at the Marlborough Hotel in Newtown, as were a group of people which included Mr Wright and James Polkinghorne.
About 1.20am an argument broke out between James Polkinghorne and Lee Bell about who had won a recent fight at Bathurst Gaol between some Aboriginal men and some Tongan men. Lee Bell and his companions were described in facts as “Aboriginal men”. Mr Polkinghorne was described as an “Islander”. The argument between Mr Polkinghorne and Lee Bell became a physical fight with punches thrown. A number of men in Mr Polkinghorne’s group joined in the fight, as did Gary Bell. Mr Wright was not involved in this fight. He left the hotel at 1.26am.
Hotel security staff ejected the men who were fighting, and their companions, from the hotel on to King Street, Newtown. Mr Wright was seen on security camera footage seeing people off in taxis and talking to people outside the hotel. At one point Gary Bell and Andrew Hill were seen on CCTV footage to speak to Mr Wright.
At 1.31am Lee Bell, Gary Bell and Andrew Hill walked south along King Street accompanied by a security officer. Mr Wright, James Polkinghorne and a number of other men, at least three, ran towards Lee Bell and his companions. An unidentified man in the chasing group, not Mr Wright, struck Lee Bell from behind and fought with him. Another unidentified man joined in the fight. Mr Wright was to that man’s side and a little behind him. Mr Wright joined in the fight with the Aboriginal men. Andrew Hill punched James Polkinghorne, who fell to the ground apparently unconscious. Mr Wright then fought with Andrew Hill and Gary Bell who punched him.
Gary Bell took a bottle from a garbage bin and threw it at Mr Wright. The bottle struck Mr Wright on the forehead and cut the skin above his left eye, causing blood to flow on to his face. While Mr Wright was fighting with Gary Bell and Andrew Hill four men described as Islanders were fighting with Lee Bell. Mr Wright was not part of this group.
Mr Wright then ran across King Street, followed by Gary Bell and Andrew Hill, in the same direction which Lee Bell and the men with whom he was fighting had taken.
Lee Bell was knocked to the ground by the men with whom he was fighting. He lay face down, not moving and apparently unconscious. A number of men, described as between two and five by witnesses, although it seems more than two, at least three, stomped on and kicked Lee Bell’s head forcefully several times, lifting their feet high, as he lay face down on the footpath.
Mr Wright crossed the road to where James Polkinghorne was lying outside the hotel. He helped Mr Polkinghorne to his feet and was heard to say something like, “Get up brother, let’s go.” They both crossed King Street to where Lee Bell was lying. Mr Wright stomped on or kicked Lee Bell’s head two to four times. James Polkinghorne also kicked Lee Bell in the head two or three times.
Mr Wright, James Polkinghorne and a woman walked a short way along King Street where they called out to the Aboriginal men and made what were described as threatening gestures. Police arrived. Mr Wright was identified to police as having been involved in the attack on Lee Bell and was arrested, as was James Polkinghorne. The remaining Islander men have not been identified.”
The victim Lee Bell was taken to hospital, where he remained until he was discharged on 3 October 2006. His injuries included bruising to his right temple, a small sub-arachnoid haemorrhage, a shallow sub-dural haemorrhage and fractures to both eye sockets, a bone between his left eye socket and his temple, his cheekbone and a bone in his nose. While he was in hospital he underwent surgery to his fractured cheekbone. The sentencing judge commented in her remarks on sentence that the injuries sustained by the victim were serious and it was fortunate that his injuries had not been worse.
The latest medical report which was before the sentencing judge was dated 10 July 2007 and stated that the victim had returned to work. The victim continued to have headaches. The doctor who prepared the report considered that the victim was continuing to improve.
A major issue in the proceedings on sentence was whether the respondent was to be sentenced only for the acts he himself had performed in striking the victim or whether, as the Crown submitted, the respondent should be sentenced on the basis that he was a party to a joint criminal enterprise. In her remarks on sentence her Honour concluded:-
“I find that Mr Wright joined in the enterprise at the beginning when he joined the pack of men running after Lee Bell’s group, that he engaged in fighting with the Aboriginal men before the bottle was thrown at him, that by fighting with Gary Bell and Andrew Hill close to where men were assaulting Lee Bell he was aware of what was happening to Lee Bell, and by fighting with Lee Bell’s companions who were trying to defend him he was participating in a joint criminal enterprise to assault Lee Bell which he joined at the time he ran with his group after Lee Bell’s group, and that he continued to participate in the joint criminal enterprise when he crossed the road, assisted James Polkinghorne up and went back and stomped on Lee Bell’s head.
Because he participated in the joint criminal enterprise from the beginning Mr Wright is legally responsible for all the injury to Lee Bell and I will sentence him on that basis.”
In her remarks on sentence her Honour undertook an assessment of the level of objective seriousness of the offence. As already indicated, her Honour found that the respondent had commenced to participate in the offending when he joined the other men in running after the group which included the victim and that he had been involved in the fighting before he was struck by the bottle, so that being struck by the bottle had not provoked him into entering into the fighting. The offence had, of course, been committed in company. Her Honour found that the respondent’s own conduct in stomping on the victim’s head while he was lying apparently unconscious on the ground was brutal and serious and that the injuries the victim had suffered were serious, although he had made “a significant recovery”.
Her Honour accepted, in favour of the respondent, that being hit by the bottle had “fuelled him to continue fighting”, that he himself had suffered a slight injury in the fighting and that the alcohol he had consumed might have affected his judgment or his ability to control his anger.
Her Honour found that the offence was aggravated by being committed without regard for public safety, on the basis that, although no harm had actually been suffered by any of a number of members of the public who had witnessed the fighting, this kind of fighting in a public street involves a risk of causing harm to members of the public.
Her Honour concluded that she should assess the level of objective seriousness of the respondent’s offending as being in the mid-range.
Notwithstanding that she had found that the objective seriousness of the offence was in the middle of the range, her Honour did not impose a standard non-parole period, because of the respondent’s plea of guilty, his youth and the steps he had taken to rehabilitate himself (and, I infer, his lack of any previous criminal history). Her Honour said that the standard non-parole period remained relevant as a reference point or guide post in the sentencing of the respondent.
In her remarks on sentence her Honour noted some of the subjective circumstances of the respondent. The respondent was 19 years old at the time of committing the offence and 21 years old at the time of being sentenced. He had been employed as a casual storeman and his employer spoke well of him in a reference. The respondent was supported in court during the proceedings on sentence by his mother, his grandmother and his partner, who was pregnant by him. The respondent was a member of a Samoan church.
A pre-sentence report and a report by a psychologist indicated that the respondent had problems with alcohol consumption and anger management. While at liberty pending being sentenced, the respondent had undertaken counselling with a Drug and Alcohol Counsellor. The respondent’s partner told the probation officer who prepared the pre-sentence report that the respondent had greatly reduced his consumption of alcohol.
The sentencing judge decided that the objective seriousness of the offence meant that no penalty other than imprisonment would be appropriate; that the period of about 4 ½ months which the respondent had spent in pre-sentence custody was not a sufficient penalty, particularly having regard to the need for general deterrence; that a discount of 25 per cent should be allowed for the utilitarian value of the respondent’s plea of guilty; and that special circumstances should be found in the respondent’s need for rehabilitation with respect to abuse of alcohol and anger management and in the respondent not having previously been in prison.
On this appeal the Crown contended that the sentence imposed by the sentencing judge was manifestly inadequate.
It was submitted by the Crown that the sentencing judge had erred in finding that the objective seriousness of the offence was in the middle of the range for offences under s 33. Counsel referred to the sentencing judge’s own finding that the respondent had been from the beginning a party to a joint criminal enterprise. Counsel referred both to the respondent’s own conduct and to the conduct of other persons in carrying out the joint criminal enterprise, such as the actions of other persons in knocking the victim to the ground and stomping on and kicking the victim’s head forcefully several times. It was submitted by the Crown that the sentencing judge should have found that the level of objective seriousness of the offence was higher, and much higher, than the middle of the range.
Counsel for the Crown then referred to the maximum penalty for the offence of imprisonment for 25 years and to the standard non-parole period of seven years, that is a period less than half the period of the maximum penalty, and to observations by this Court, for example in R v Anderson [2008] NSWCCA 211 at (17) by McCellan CJ at CL, that in the case of offences for which a standard non-parole period has been set at less than half of the maximum penalty for the offence, then “for offences falling above the middle range the penalty should increase by a greater amount for increasing degrees of seriousness than is the case for offences falling below the middle range”.
It was further submitted by the Crown that, although the sentencing judge had referred to the standard non-parole period as being a reference point or a guide post, the actual sentence set by the sentencing judge showed that the sentencing judge had not in fact had sufficient regard to the standard non-parole period.
It was also submitted by the Crown that the discount of 25 per cent allowed by the sentencing judge for the utilitarian value of the respondent’s plea of guilty was, in the circumstances, excessive.
It was submitted by counsel for the respondent that it had been open to the sentencing judge to find that the objective seriousness of the offence was in the middle of the range for offences under s 33 of the Crimes Act, to find that substantial weight should be given to the respondent’s favourable subjective circumstances and to allow a discount of 25 per cent, or at least close to 25 per cent, for the utilitarian value of the plea of guilty.
Decision
The principles to be applied by a Court of Criminal Appeal in determining a Crown appeal against sentence were summarised by Wood CJ at CL in the frequently quoted passage in his Honour’s judgment in R v Wall [2002] NSWCCA 42 at (70) there is no need to repeat them here.
On this appeal it was not disputed by counsel for the respondent that it had been open to the sentencing judge to find, for the reasons she gave, that the respondent had been from the outset a party to a joint criminal enterprise. However, her Honour did not make any clear finding that from the outset the joint criminal enterprise to which she found the respondent had been a party was a joint criminal enterprise to cause grievous bodily harm. The joint criminal enterprise which her Honour found that the respondent had joined was described by her Honour in her remarks on sentence as a joint criminal enterprise “to assault” Lee Bell. There would be an important distinction between a joint criminal enterprise to assault and a joint criminal enterprise to cause grievous bodily harm; the maximum penalty under s 33 of the Crimes Act is very much higher than the maximum penalty for assault including assault occasioning actual bodily harm or what was the maximum penalty for malicious wounding under s 35 of the Crimes Act as in force at the time of the offence. In my opinion, it is at least reasonably possible that the joint criminal enterprise to which the respondent was a party was in the beginning a joint criminal enterprise merely to assault but, as the fighting continued and the level of violence increased, it became a joint criminal enterprise to cause grievous bodily harm.
It is true that by his plea of guilty to a charge under s 33 of the Crimes Act the respondent admitted that, at some stage, he had formed an intent to cause grievous bodily harm to the victim. However, his plea of guilty did not contain any admission by him that he had formed an intent to cause grievous bodily harm at the outset.
The absence of a clear finding by her Honour that the joint criminal enterprise was from the beginning a joint criminal enterprise to cause grievous bodily harm militates against this Court holding that her Honour erred in not assessing the level of objective seriousness of the respondent’s offending as being above the middle of the range.
As I have already noted, the Crown placed considerable reliance on the conduct of other persons in carrying out the joint criminal enterprise, such as the actions of other persons in knocking the victim to the ground and stomping on and kicking the victim’s head forcefully several times.
If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90.
However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23).
A case to which the Court was referred on the present appeal was R v Mitchell, R v Gallagher [2007] NSWCCA 296. In Mitchell and Gallagher the two respondents to the Crown appeal against sentence had jointly attacked the victim, punching, kicking and stomping on him. It was found that Mitchell was the primary offender in the attacking of the victim, although Gallagher had also punched the victim to the head and kicked him as he lay on the ground. The Court of Criminal Appeal accepted that Gallagher’s objective criminality was less than Mitchell’s, even if not to a very substantial degree, and that, apart from differences in the subjective circumstances of the two offenders, Gallagher’s lesser objective criminality should be reflected in a lesser sentence.
In the present case, I consider that in assessing the objective seriousness of the respondent’s offending some regard, even if limited, could properly be had to the facts that a number of the acts of violence perpetrated on the victim had been done by persons other than the respondent. This conclusion militates against this Court holding that the sentencing judge erred in not assessing the level of objective seriousness of the respondent’s offending as being above the middle of the range.

In any event, as was said by Spigelman CJ in R v Mulato [2006] NSWCCA 282 at (37) with the concurrence of Simpson J at (46):-
“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.”
In my opinion, it was open to her Honour to characterise the degree of objective seriousness of the respondent’s offence as being in the middle of the range of objective seriousness and I would reject the submission that her Honour erred in not finding that the level of objective seriousness of the respondent’s offence was above the middle of the range.
As I am of the opinion that this Court should not hold that the sentencing judge erred in not finding that the level of objective seriousness of the respondent’s offence was above the middle of the range, the Crown’s further submission based on the periods of the maximum sentence and the standard non-parole period for offences under s 33 of the Crimes Act, should also be rejected.
There is some force in the Crown’s submission that a full discount of 25 per cent should not have been allowed for the utilitarian value of the respondent’s plea of guilty. However, even if the plea of guilty was not entered at the first reasonable opportunity, it was at least entered at the committal stage and a discount close to 25 per cent would have been warranted. Any intervention by this Court on the ground that an excessive discount was allowed for the plea of guilty would, in my opinion, be merely “tinkering” with the sentencing judge’s sentence.
The reasons given by the sentencing judge for departing from the standard non-parole period of seven years were sufficient reasons for her to make some departure from the standard non-parole period. However, the question arises whether there is too great a disparity between the standard non-parole period and the non-parole period set by the sentencing judge and, hence, whether the sentence imposed by the sentencing judge should be held to be manifestly inadequate. The offending by the respondent was correctly regarded by the sentencing judge as serious. Furthermore, as her Honour observed, there was a need to give effect to the sentencing purpose of general deterrence. Fighting between groups of intoxicated young men is unfortunately not uncommon.
The sentence imposed by the sentencing judge was undoubtedly lenient and verged on being manifestly inadequate. However, the conclusion I have ultimately come to is that the sentence imposed by the sentencing judge was just within the range of permissible sentences. In any event, if I had come to the conclusion that the sentence fell just on the side of being manifestly inadequate, I would have considered that this Court should exercise its “lively” discretion to refuse to intervene, having regard to the subjective circumstances relied on by her Honour.
I would dismiss the Crown appeal against sentence.
ADAMS J: I agree with James J.

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LAST UPDATED:
5 March 2009