Regina v George and Johnson

[1999] NSWCCA 243

CITATION:	Regina v George & Johnson [1999] NSWCCA 243
FILE NUMBER(S):	CCA 60637/98; 60647/98
HEARING DATE(S):	30 June 1999
JUDGMENT DATE:	30 June 1999
PARTIES :	Regina v Scott Tony George Regina v Brett Johnson
JUDGMENT OF:	Sully J; Bell J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/61/0101
LOWER COURT JUDICIAL OFFICER:	Cooper DCJ

COUNSEL:	Appellants - in person R. A. Hulme - Crown
SOLICITORS:	Appellants - in person C. K. Smith - Crown
CATCHWORDS:
ACTS CITED:	Crimes Act 1900
DECISION:	Leave to appeal granted; Appeals dismissed

IN THE COURT OF
CRIMINAL APPEAL

60637/98
60647/98

SULLY J
BELL J

30 June 1999

REGINA v Scott Tony George
REGINA v Brett JOHNSON

JUDGMENT

1 SULLY J: On 21 November 1997 Scott Tony George and Brett Johnson stood together for sentence before his Honour Judge Cooper in the District Court at Sydney. Each of them had been previously indicted for robbery with wounding, an offence contravening s 96 of the Crimes Act 1900 and attracting upon conviction a statutory maximum penalty of penal servitude for twenty-five years.
2   Each had pleaded not guilty. Each had been put upon his trial accordingly. Each had been found guilty by the verdict of the jury.
3   His Honour imposed upon each of the two men a sentence of penal servitude of nine years but somewhat differently apportioned as between the two of them. In the case of Mr George, the sentence was apportioned between a minimum term of five years and six months and an additional term of three years and six months. In the case of Mr Johnson, the sentence was apportioned between a minimum term of five years and nine months and an additional term of three years and three months. The minimum term in each case was dated differently as to its commencement, but that is explicable by reason of pre-sentence custody in Mr Johnson's case.
4   It is at first glance not easy to discern the basis upon which his Honour apportioned the common sentences in different ways but it seems to be a correct understanding of his Honour's relevant reasoning that Mr George was serving at the relevant time a sentence that had been imposed upon him in December 1996 at the Penrith District Court and in connection with two associated matters of aggravated break, enter and steal. It is, I think, a fair inference, from a careful reading of the remarks on sentence, that his Honour's perception of Mr George's situation was that the principle of totality required some shading, if I might put it that way, of the apportionment of his aggregate sentence by comparison with that of Mr Johnson, who was not then serving a sentence of any kind.
5   The relevant facts are within a small compass. They can be canvassed sufficiently for present purposes by extracting them as follows from the remarks on sentence of his Honour Judge Cooper:

"On the night in question the victim, Wayne Robert James, met the two prisoners initially at the Waggon Wheels Hotel and struck up a conversation with them. Later the three went to the Kingswood Hotel. During the course of the evening the two prisoners had run out of money and the victim bought them a beer or two. At about closing time the three left the hotel together and went to a flat occupied by the prisoner Johnson and his de facto wife, Kim, who is also the sister of the prisoner George.
Later that night or the early hours of the next morning the victim left the flat in order to get transport to his home. The two prisoners also left the flat, either with him or immediately behind him. Each of the prisoners had a beer bottle partly full of beer initially. As the victim was walking down the centre of the street, which was ill-lit, in the general direction of Great Western Highway he felt a cut on the right side of his face. He fell to the ground. The two prisoners were then the only persons near him. The prisoner George was closer.
In the hope that the prisoners would leave him alone the victim took his wallet out of his pocket and handed it to the prisoner George, who accepted it. The victim then got up and tried to run away, but the prisoners kept coming after him and cut him further. He was unable to identify which of the two was attacking him at which particular point of time. The weapon used by each of the prisoners was a broken beer bottle.
The victim made his escape when he reached the well lit Great Western Highway. He then staggered, faint and bleeding, some 800 metres to St Mary's Police Station where he collapsed and was then taken to hospital. The hospital notes, which were exhibit A at the trial, set out in some detail his injuries. They include a laceration of the skull, severe cuts to the right cheek, the lower lip and the neck. The laceration of the skull was at the back of the head and was a reasonably severe wound. The lacerations to the face were caused by a sharp object. There is no doubt that the victim still has a very unsightly scar which is quite noticeable on his right cheek.
In the meantime the prisoners returned to the flat, where they shared the $80 that was found in the victim's wallet. The prisoner George then disposed of the wallet by depositing it in a garbage bin outside the flat. That garbage bin was due to be emptied that night.
The evidence satisfies me beyond reasonable doubt that the victim was quite drunk at the time. The two prisoners were affected by alcohol, but to a lesser extent."

6   His Honour characterised the objective nature of the crime thus described as follows:

"The aggravating feature of this case is the extent of the gratuitous brutal and almost sadistic violence on the part of the prisoners against the victim. At the time the victim was so affected by alcohol that he was unable to offer any resistance to a demand for his wallet. He would have handed it over upon a verbal threat, yet the prisoners persisted in not merely corporal violence but also added wounding.
The objective facts demonstrate a very grave instance of this particular offence, which carries a maximum penalty of penal servitude for twenty-five years."

7   His Honour then proceeded to deal with the subjective features particular to the case of each of the two prisoners.
8   I have read with care what his Honour had to say in that regard and I am satisfied that his Honour recognised all of the relevant features that were placed before him in the evidence and gave effect to them correctly according to law. It is trite that the present applications, if either of them is to succeed, must demonstrate an error of law in the sentencing process.
9   So far as concerns Mr George's matter, he seeks to do that in a document undated but sent to the Registry of the Court. Mr George contends in his document that the sentence is "a very harsh one". It goes on to point out that "he pleaded guilty for the robbery", which I understand to convey that he offered a plea to an offence of a lesser gravity than that in respect of which he was indicted and that the Crown did not accept that plea but brought him to trial on the more serious matter of which ultimately and by the verdict of the jury at trial he was found guilty.
10   Mr George goes on to say that he apologised to the victim for having taken his wallet and that he had expressed his "deepest regrets" to the victim. He continues with the observations that he had co-operated with the police from the start; that he had a "raging alcohol problem"; and that he was already serving at the time he stood for sentence before Judge Cooper a two-year sentence for break and enter offences which occurred six months after the matter with which this Court is now concerned. Mr George expresses the view that:

"These are just a few things that I feel the Judge didn't take into account when summing-up."

11   Mr George forwarded under cover of his letter a copy of an advice which had apparently been sought by the Legal Aid Commission as to his prospects of success in the present application. As I gather, they were judged by the legal aid authority as being not sufficient to warrant the grant of legal aid, which is why Mr George appears unrepresented at today's hearing.
12   I have not read in any detail the contents of that advice, thinking it better not to do so lest my view of what actually was said and done by the sentencing Judge might be improperly influenced by opinions expressed in that document.
13   As to the other particular matters of which Mr George complains, the following points might usefully be made. First, as I have pointed out, it is true that Mr George offered a plea of guilty to a lesser offence but that does not, I think, afford him very much assistance when the fact is that the Crown did not accept the so-offered plea, and succeeded in convincing a jury beyond reasonable doubt that Mr George was guilty of the much more serious offence for which he was ultimately brought to trial.
14   Accepting, as I am prepared to do for present purposes, that Mr George has indeed apologised to the victim and expressed his "deepest regrets" to him, I do not see that that, although not unimportant in its own terms, imports into the approach of Judge Cooper any appellable error of law. I can say nothing useful about the alleged co-operation with the police from the start of the investigation for I have before me, as is usual on applications of the present kind, only the transcript of the sentencing proceedings and not the transcript of the trial, and in particular not the transcript of any record of interview made between Mr George and the police.
15   As to having a "raging alcohol problem", that again is something as to which I can say, as at present advised, nothing useful.
16   As to the two year sentence which Mr George was serving at the time he stood for sentence before Judge Cooper, it is perhaps relevant to take a moment to say something more.
17   Those offences involved two separate attacks upon two very elderly householders in a Sydney suburb. The husband of the couple was aged some eighty years at the time, the wife some seventy-six years. The details of what happened are set out at pages 6 and 7 of his Honour's remarks on sentence. I need not repeat them in detail, but I observe that, on any view, the offences there described can only be regarded as extremely serious matters. Whatever else can be said about them, it can be said with certainty that they did not entitle the applicant to any particularly lenient or other favourable consideration from the Judge before whom he stood at sentence in the present connection.
18   With regard to Mr Johnson, he has had prepared and forwarded to the Court a letter which sets out in summary the things that he wishes to say. His position, put simply, is that the assault in question did not take place with a bottle, but took place with a knife; and that he did not at any time use, or indeed handle, the knife. He refers to certain things which are said to support his contentions in that regard. There are several things to be said about that stance taken by Mr Johnson.
19   The first is that in the circumstances of the offence now in question it would not make a great deal of difference, if indeed it would make any difference, to the objective culpability of what was done, that the weapon was a broken bottle rather than a knife. Such an assault, with whatsoever weapon committed, is a grievous breach of the criminal law, as is made evident by the statutory maximum penalty fixed by the Legislature in respect of it.
20   Secondly, this Court is not a Court of re-trial. It is not possible for the Court to re-open the trial of the facts concerning the assault. If it be contended that the sentencing Judge erred in his Honour's understanding of what the evidence disclosed as to the relevant facts, then it is a simple enough thing to bring to the attention of the Court what the evidence at trial actually was that supports the proposition that the sentencing Judge erred as to the facts.
21   The third thing which needs to be made clear is that both of the present applicants were found by the jury to have been present together at, and actively participating together in, the robbery and in the wounding. That being the case, each is equally liable for what happened: the one as principal in the first degree, the other as principal in the second degree. Each has taken an active part in the common enterprise of robbing and wounding the victim and each is therefore justly to be held to equal account with regard to the objective culpability of that offence.
22   For myself, I would not accept Mr George's characterisation of the sentences as "very harsh". That they are severe sentences is of course clear from the terms in which they were imposed. But the offences in question were serious. They were committed against a background in the case of each applicant of criminal antecedents of no trifling extent.
23   It needs to be said on any occasion of the present kind that a person in the position of the victim, whether drunk or not, is entitled, not as a privilege but as a right, to come and go lawfully in any public place without being at risk of, let alone subjected to, an assault, a wounding and a robbery of the kind here in question. The Courts have said so time without number.
24   The fact the Courts have said so is well-known. It cannot be that people in the position of the present applicants did not understand that when they did what it has been found they did on the night in question, they were committing serious criminal offences and putting themselves at risk, precisely, of penalties as severe as those that were imposed upon them.
25   I have come to the conclusion that neither applicant has made good the proposition that there was some error of law made by his Honour Judge Cooper and calling for the intervention of this Court.
26   In the case of each application, I would grant leave to appeal and dismiss the appeal.
27   BELL J: I agree.
28   SULLY J: The Court orders accordingly.

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