Regina v Jason Elijah-Jack

[2002] NSWCCA 177

CITATION:	Regina v Jason Elijah-Jack [2002] NSWCCA 177
FILE NUMBER(S):	CCA 60248/02
HEARING DATE(S):	15/5/02
JUDGMENT DATE:	16 May 2002
PARTIES :	Regina v Jason Elijah-Jack
JUDGMENT OF:	O'Keefe J at 1; Smart AJ at 30

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	Mr D Dalton - Applicant Mr R Hulme - Crown
SOLICITORS:	Nikola Velcic & Assoc - Applicant S E O'Connor - Crown
CATCHWORDS:	Appeal - Application for leave to appeal against sentence - Assault occasioning actual bodily harm - Good character - Failure to give adequate weight - Effects of alcohol and psychological disorders - Contrition
DECISION:	1. Leave to appeal granted; 2. Appeal allowed; 3. Sentence imposed in the District Court set aside; 4. The Applicant is sentenced to imprisonmement for one year commencing on 22 April 2002 and expiring on 21 April 2003. The non-parole period is fixed as three months to commence on 22 April 2002 and expire on 21 July 2002, on which date the Applicant is to be released on parole.

60248/02

O’KEEFE J
SMART AJ

16 May 2002

Regina v Jason Elijah-Jack

Judgment

:

INTRODUCTION

2 Jason Elijah-Jack (“the Applicant”) has sought leave to appeal against a sentence imposed in the District Court following a plea of guilty to a charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act, 1900 (the Act). The Applicant was sentenced to imprisonment for one year and six months to commence on 22 April 2002 and expire on 21 October 2003 with a non-parole period of six months fixed to expire on 21 October 2002. The maximum penalty for the offence is imprisonment for five years.

FACTS

3 The circumstances involved in the commission of the offence were that the Applicant and the Complainant were living in a de facto relationship which had proved to be somewhat difficult. On the day of the offence both had consumed a quantity of alcohol. Following a dispute which arose out of an unsuccessful attempt at sexual relations, the two went for a walk. They returned to the flat in which they were living and a further dispute ensued in which the applicant punched the Complainant a number of times around the head and body, dragged her by the hair from one room to another and back to the room whence they had come, pushed her onto the bed and hit her again. He dragged her from the bedroom to the kitchen where he got some ice cubes wrapped them in a tea towel and gave them to her to apply to her head. He dragged her by the hair back into the bedroom where he again hit her. The nature and extent of the Complainant’s injuries are quite graphically shown in photographs taken shortly after the assault.

4 The assault was undoubtedly serious, the blows heavy and repeated and the actions of the Applicant wholly unacceptable.

BASIS OF APPLICATION

5 In support of the application, it was argued that his Honour had fallen into error in four areas. These were:

(i) As to character
(ii) In the form of the sentence imposed
(iii) The effects of alcohol and the mental condition of the Applicant
(iv) In relation to contrition

Each of these errors alone, and all errors in combination, so the argument ran, resulted in the sentence and the non-parole periods being erroneously high.

(i) Character.

6 It was first submitted on behalf of the Applicant that the evidence revealed him to be of quite exceptional good character and that in fixing the sentence his Honour failed to give weight, or proper weight, to such exceptional character. Secondly counsel argued that, although his Honour referred obliquely to character when determining that there was no alternative to a custodial sentence, he did not take it into account when actually fixing the term of the sentence.

7 In support of this basis of argument, it was pointed out that the evidence revealed that the Applicant had been doing voluntary work for the Red Cross for four years at an average of some 15 hours per week. The Applicant’s evidence to this effect was confirmed by an independent witness, William Patterson, who was a Community Services Worker for the Disadvantaged and Welfare Recipients’ Association of New South Wales. Not only did he confirm that the Applicant carried out such voluntary work, but his evidence also established that the Applicant was a valuable, effective and patient worker amongst the underprivileged. He said that:

“On a scale of one to ten, he’d have to be an eight and a half to a nine … Jason seems to give us that quality that most volunteers find hard to get across because they’re unpaid.”

8 In addition, it was stressed that prior to the offence to which the Applicant had pleaded guilty he was a person who was without any criminal record and whose character was unblemished – a description accepted by the Judge. He was described by several witnesses as respectful, polite, affable and protective.

9 Early in his Remarks on Sentence, his Honour referred to the Applicant’s character and charitable work. He stated that the Applicant was “entitled to have his good character taken into account in his favour”. However, it was submitted that this statement was not reflected in the ultimate sentence and that, although his Honour allowed a discount of 25% from the sentence which would otherwise have been imposed, he did so on the basis of a plea of guilty and no other basis.

10 When determining the nature of the sentence that should be imposed, his Honour set out the four alternatives to a custodial sentence. He concluded that there was no alternative to imprisonment “having regard to what I have said concerning the offences and the offender”. The reference to the offender would be apt to include considerations of character.

11 The next step in his Honour’s reasoning was to quantify the period of imprisonment. In doing so, he adverted to what the Applicant had done to the Complainant and characterised it as serious. It was on this basis he said that the offence, objectively, thus fell in the middle of the range for penalty in relation to assaults occasioning actual bodily harm. He then determined that the sentence should be “imprisonment for two years, less 25% on account of the offender’s guilty plea, leaving a sentence of one year and six months”. He did this:

“Having regard to the fact that this court and the Local Court have concurrent jurisdiction in relation to the offence.”

12 It is not apparent on the face of the Remarks on Sentence that the reference to good character and unblemished record in the earlier part of such Remarks and which had been expressly referred to in relation to the nature of the sentence, was taken into account when quantifying the term of the sentence. The form of the Remarks on Sentence suggests that it was objective factors which founded the decision to impose a penalty of two years imprisonment, and that the powerful subjective factor of character and charitable works was not given any, or at least appropriate, weight in this part of the sentencing process. This is an error.

(ii) Form of Sentence

13 It was submitted on behalf of the Applicant that, in determining whether a custodial sentence should be imposed, his Honour failed to consider the alternative of a suspended sentence.

14 In his Remarks on Sentence his Honour accurately set out the alternatives to a sentence of imprisonment, namely, a deferred sentence pursuant to s 9 of the Act; a dismissal of the charge without conviction pursuant to s 10 of the Act; the imposition of a fine pursuant to s 15 of the Act; and the imposition of a Community Service Order pursuant to s 8 of the Act. Having outlined all the alternatives his Honour returned to consider the alternatives of suspended sentence (s 12), home detention (s 7), and periodic detention (s 6), and concluded that the seriousness of the offence called for a sentence of imprisonment.

15 In the paragraph which immediately follows the enumeration of the alternatives to imprisonment his Honour refers to “something more than a Community Service Order” and to periodic detention or full time imprisonment, but does not make express reference to a suspended sentence. The paragraph in which this occurs is somewhat obscure in form and may be referring to a submission put by the Crown Prosecutor. However, the reasons expressed in the succeeding paragraph make it clear that of all the alternative forms of imprisonment, full time imprisonment was the one thought to be most appropriate to the seriousness of the offence. Such a conclusion carries with it the consequence that the other alternatives which had been enumerated, including that of suspended sentence, were rejected as inappropriate.

16 In my opinion, no error is made out in relation to this area of the sentencing process.

(iii) Alcohol and the Mental Condition of the Applicant

17 It was submitted that in determining the sentence his Honour erred in his finding in relation to the effects of alcohol on the Applicant at the time of commission of the offence, especially when superimposed on an antecedent state of depression from which the Applicant was suffering.

18 The agreed Statement of Facts was short. However, it included the following :

“On that particular day (i.e. of the offence) they had consumed a quantity of alcohol”.

It would be unlikely that this fact would be included in the short Statement of Agreed Facts unless it were to be treated as relevant to the offence. Furthermore, in the Probation and Parole Service Report reference is made to the Applicant having “been affected to a degree by alcohol in the commission of the offence”. In addition, the history given by the Applicant to the Forensic Psychiatrist, Dr Brian Westmore, included a statement that he and the Complainant had been drinking, had consumed three-quarters of a bottle of whiskey with his consumption being approximately half of the bottle. There was a period after the alcohol had been consumed when the couple were walking, but the time interval between the consumption of the considerable quantity of alcohol and the offence could not have been great. A residual effect from the alcohol was highly probable.

19 The Applicant’s intake of alcohol cannot be considered in isolation. The Applicant had been the subject of a quite serious assault in the year preceding the commission of the offence. He had sustained head injuries and had developed anxiety and depression. These disorders were associated with or responsible for the Applicant experiencing difficulty in achieving or maintaining an erection. On the evidence before the sentencing court the combination of these factors appears to have caused or contributed to a person of otherwise unblemished character, good repute and generally affable and polite disposition behaving uncharacteristically.

20 In considering the effect of alcohol in relation to the commission of the offence the Judge said:

“There is nothing to suggest any relationship between their having consumed alcohol and the offender’s commission of the offence or that at the time he committed the offence he was affected by the alcohol that he had consumed.”

21 In my opinion this is an error. No reference is made to the purpose for including the reference to the consumption of alcohol in the agreed Statement of Facts. No consideration is given to its relevance in such statement. Nor is any consideration given by his Honour to the other evidence referred to in paragraph 18 above nor to the effect that the ingestion of alcohol was likely to have had on a person who had the disorders referred to in paragraph 19. In short there was no real analysis by his Honour in relation to alcohol or whether it, as I think was the case, was a contributing factor to the commission of the offence. In failing to take these matters into account I am of opinion that his Honour erred.

(iv) Contrition

22 It was argued on behalf of the Applicant that the Judge erred in not finding that the Applicant was contrite for what he had done to the Complainant.

23 A plea of guilty has two effects; one is utilitarian and the other is that it may serve as an indication of contrition. His Honour doubted that the Applicant was sorry for what he had done to the Complainant as opposed to being sorry for himself because of the predicament in which he found himself. The basis on which this finding was made was a comparison between the contrition expressed at the hearing and what had been said to Dr Westmore when he examined the Applicant on 4 October 2001.

24 When the Applicant saw Dr Westmore he gave a version of the facts which was inconsistent with the Agreed Statement of Facts and the severity of the assault as demonstrated by the photographs which were before his Honour and this Court. It tended to be self-justifying. At that time the Applicant intended to plead not guilty as he was being charged with a more serious offence than that presently before the Court. However, on the lesser charge proffered he pleaded guilty. Since contrition was a factor favourable to the Applicant, the onus of establishing it lay on him. There was evidence before his Honour on which he could properly conclude that he was not satisfied as to the contrition of the Applicant. In so finding, I am opinion that his Honour did not err.

CONCLUSION

25 Two errors in the sentencing process have been identified. These warrant the Court re-sentencing the Applicant.

SENTENCE

26 It is appropriate, in my opinion, to review the sentence imposed by his Honour and to reduce it by reference to the factors favourable to the Applicant which were not given weight or adequate weight in the sentencing process in the Court below.

27 In re-determining the sentence it should be borne in mind that the offence was serious. It was committed by a strong young man on a woman who, although the de facto of the Applicant, was some ten years older than he. Furthermore, the sentence imposed should reflect that the Court will not tolerate attacks of such a kind and that in a case such as the present a custodial sentence will usually be appropriate. In the instant case a custodial sentence is, in my opinion, appropriate. The term of the sentence should be viewed objectively much in the way it was viewed by his Honour. However, when regard is had to subjective features an additional discount on the sentence should be given for the exceptional good character of the Applicant, his record of community service through voluntary charitable work for the Red Cross and having regard to the circumstances in which the offence was committed, namely the effect of the alcohol that the Applicant and Complainant had consumed together superimposed on the anxiety, depression and other problem from which the Applicant suffered at the relevant time.

28 Having regard to the foregoing matters I am of opinion that the sentence imposed by the trial Judge should be reduced to a sentence of imprisonment for one year from 22 April 2002 and expiring on 21 April 2003 and that the non-parole period should be reduced to three months to commence on 22 April 2002 and expire on 21 July 2002. The alteration in the statutory ratio between the sentence and the non-parole period is because of the finding of special circumstances made by his Honour, with which I agree.

ORDERS

29 For the foregoing reasons I propose orders as follows:

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed in the District Court set aside.

4. The Applicant is sentenced to imprisonment for one year commencing on 22 April 2002 and expiring on 21 April 2003. The non-parole period is fixed as three months to commence on 22 April 2002 and expire on 21 July 2002, on which date the Applicant is to be released on parole.

30 SMART AJ : I agree.

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