Speechly v The Queen - [2008] NSWCCA 204

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Speechly v R [2008] NSWCCA 204

FILE NUMBER(S):
2007/3065

HEARING DATE(S):
15/08/2008

JUDGMENT DATE:
4 September 2008

PARTIES:
Justin Speechly
Regina

JUDGMENT OF:
McClellan CJ at CL Barr J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/21/1107

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
15/06/2007

COUNSEL:
D Carroll (Applicant)
P Ingram (Crown)

SOLICITORS:
Mark Klees and Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence
relationship between non-parole and parole periods under s44 Crimes (Sentencing Procedure) Act
comparison of sentences of co-offenders

LEGISLATION CITED:
Crimes Act 1900 s33
Crimes (Sentencing Procedure) Act 1999 s21A, s44, s54B

CASES CITED:
Lowe v The Queen [1984] HCA 46 )

TEXTS CITED:

DECISION:
1.Grant leave to appeal against sentence and allow the appeal.
2.Quash the sentence appealed from and impose in lieu a sentence of imprisonment. Fix a non-parole period of six years commencing on 23 December 2005 and expiring on 22 December 2011 and a balance of term, during which the applicant will be eligible for consideration for release to parole, of three years, expiring on 22 December 2014.
3. Declare that the first day upon which the applicant will be eligible for release to parole will be 22 December 2011.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007 / 3065
McCLELLAN CJ at CL
BARR J
PRICE J
THURSDAY 4 SEPTEMBER 2008

JUSTIN SPEECHLY V REGINA

Judgment

McCLELLAN CJ at CL: I agree with Barr J.
BARR J: Following a trial by jury in the District Court, the applicant, Justin Speechly, was convicted of and sentenced for the offence of malicious wounding with intent to inflict grievous bodily harm. Hughes DCJ sentenced him to imprisonment for a non-parole period of six years and a balance of term of four years and eight months, a total sentence of ten years and eight months. He appealed against his conviction and sought leave to appeal against the sentence. Before the appeal was called on for hearing he abandoned the conviction appeal.
On 22 December 2005 the complainant, Jacob Hurinov, went to the Quakers Inn Hotel at Quakers Hill. At 3:25am on 23 December he left the hotel. A courtesy bus dropped him at an intersection not far from where he lived. There he saw the applicant and his half-brother, Thomas John Irving. He did not know them but had seen them at the hotel. He thought that they might be lost and went over to see whether he could help them. They repaid his kindness by launching a vicious assault upon him. The applicant punched him. Irving took hold of his T-shirt. Mr Hurinov managed to break free, leaving his T-shirt in Irving’s hands, and ran away. The two chased him and caught him near the house of a neighbour of Mr Hurinov, Mr Derbyshire. Mr Derbyshire gave evidence of what he saw. The applicant and Irving punched Mr Hurinov and knocked him to the ground. As he lay there the applicant kicked him in the head and upper body while Irving pinned him down and punched him in the face. Mr Hurinov appeared to lose consciousness but the two attackers continued to kick and punch him. Mr Derbyshire intervened and told them to stop. They did so briefly. Those events attracted the attention of another neighbour, Mr Subra. He heard Irving say to the applicant, “Let’s finish the job” or “Let’s do the job properly”. They renewed the attack. Irving stole Mr Hurinov’s wallet from his pocket as he lay still on the ground. Both began kicking him again. They ran away but the police, whom the neighbours had summoned, caught and arrested them. Mr Hurinov’s wallet was found in Irving’s pocket.
Mr Hurinov was taken to hospital. He was very badly hurt. There were grazes and swelling all over the head and face. The right ear was partially torn away from the head. There was a fracture of the right lower jaw. His most serious injuries, however, were abdominal. There were tears of the transverse colon and mesocolon, necessitating the amputation of between 40% and 50% of the colon. Mr Hurinov had lost about 20% of his blood.
The charge was brought under s33 Crimes Act. The maximum period of imprisonment for the commission of such an offence is 25 years. The standard non-parole period is seven years.
The applicant was born on 30 March 1985, so he was 20 years old when he committed the offence and 22 years old when sentenced. He had been dealt with early in 2003 in the Children’s Court for possession of a prohibited drug. He had been given the benefit of a bond. In 2005 he had been fined in the Local Court for having had the custody of a knife in public place.
There are three grounds of appeal. The first two may be dealt with together. They assert that his Honour erred by placing too much weight on the standard non-parole period and in determining that the offence fell into the middle range of objective seriousness.
An attack was made upon his Honour’s express reasons for the finding that the attack fell into the mid range of seriousness or perhaps even slightly above it. Long passages of transcript of the debate on sentencing were extracted in the written submissions filed in this Court. It was submitted that it was thereby demonstrated that his Honour had come to his ultimate conclusion before considering aggravating or mitigating features under s21A Crimes (Sentencing Procedure) Act.
His Honour apparently thought that the prima facie relationship between non-parole and parole periods should be in the ratio 2:1, not 3:1, and on that understanding first sentenced Irving to a head sentence of 12 years with a non-parole period of 8 years (the three year fixed term for the aggravated stealing offence running concurrently) and the applicant to a head sentence of 12 years with a non-parole period of 6 years. When the error was pointed out to his Honour he had the offenders brought back to Court, vacated their sentences and imposed the existing sentences in lieu.
The passages of transcript extracted in the written submissions clearly show this misunderstanding. They also show that his Honour was unfamiliar with the interplay between the provisions of s54B, s21A and s44 Crimes (Sentencing Procedure) Act. During debate his Honour put a number of propositions which are now shown plainly to be incorrect. It was submitted by reference to those passages that the sentencing procedure had miscarried.
I do not think that the statements should be understood in that way or should be taken as necessarily representing his Honour’s final view. I think that the better view is that his Honour was putting matters tentatively as part of a process of working out the proper approach between the various bodies of law that applied in the context of seeking the assistance of the legal representatives.
His Honour’s conclusion about where the offences fell in relation to the mid range of seriousness was stated after a recital of the facts. His Honour might well have articulated his process of reasoning in more precise and conventional terms, but it sufficiently appears, in my opinion, that his Honour concluded that these were the relevant factors -
a.          the offence was opportunistic and unplanned;
b.          the offence was committed in company;
c. the offence involved both offenders setting upon the victim late at night in a deserted suburban street;
d. initially, involved the Applicant (in company with Irving) punching the victim who then fled, whereupon both offenders chased and caught the victim;
e. both offenders then punched the victim who fell to the ground;
f. there the Applicant kicked the victim to the body, head and ear while Irving was pinning the victim down and punched him to the face;
g. thereafter both offenders relentlessly kicked and punched the victim to the head and body, continuing to do so even after the victim had been rendered unconscious;
h. after a brief interlude during which a neighbour had engaged the offenders in conversation, Irving stole a wallet from the pocket of the victim and then both offenders renewed their attack by continuing to kick the victim to the head and body as he lay unconscious on the ground;
i. the injuries thereby inflicted on the victim were very serious and included:
i a partial thickness tear to the transverse colon requiring a laparotomy and removal of 40%-50% of the colon;
ii repair to a “couple” of tears to the medium sized blood vessels within the transverse mesocolon;
iii the pre-operative loss of some 20% (1 litre) of the victim’s total blood volume into the peritoneal cavity, which blood loss came from the injuries to the transverse colon and transverse mesocolon;
iv. an avulsion of the right ear requiring surgical repair to reattach the ear to the side of the head;
v.          a fracture to the right mandible; and
vi. abrasions to the right temple, left side peri-orbital swelling, swollen lips, superficial grazes with associated tenderness over the shoulders; and,
j. the offence had not been provoked by any conduct on the part of the victim.
Those were all matters proper to his consideration of the objective seriousness of the offence. In those circumstances it would have been surprising, and in my view erroneous, for his Honour to have categorised the applicant’s offence as having any less than the mid range of seriousness.
It was submitted that his Honour failed to take account of subjective mitigating factors, though it was not entirely clear which factors were referred to. It is possible that the applicant’s level of intellectual functioning might have fallen for consideration. However, as his Honour observed, the assessment of his cognitive functions was incomplete at the time of sentence.
Like Irving, the applicant was under the influence of alcohol, but it could not have been suggested that that mitigated his criminality. He was without remorse.
I do not think that it has been demonstrated that his Honour placed too much weight on the standard non-parole period or in determining that the offence fell into the mid-range of objective seriousness. In my opinion these grounds of appeal have not been made good.
The third ground of appeal asserts that the applicant has a justifiable sense of grievance by comparing his sentence with that imposed on Irving. The principles are not in doubt and need no restatement here: see Lowe v The Queen [1984] HCA 46.
It will be recalled that Irving stole Mr Hurinov’s wallet. As well as being charged with the malicious infliction of grievous bodily harm, like the applicant, he was also charged with the aggravated form of stealing from the person. The maximum penalty for that offence was 20 years’ imprisonment. Perhaps surprisingly in view of the facts I have related, the applicant was not charged with having committed that offence. His Honour sentenced Irving on the malicious injury charge to imprisonment for ten years and eight months and fixed a non-parole period of eight years. On the aggravated stealing charge he sentence him to a fixed term of three years concurrent with the non-parole period on the first count. To all intents and purposes he received no greater sentence than the applicant, notwithstanding his greater criminality.
Irving was born in November 1977, so he was 28 years old when he offended and 29 when sentenced. He and the applicant were born of the same mother. He had been dealt with in the courts on a number of occasions for offences involving stealing, breaking and entering, causing malicious damage and assault on persons. He had been imprisoned for assault. Notwithstanding those matters, as the sentencing judge observed, he had continued to commit offences. His Honour concluded that the record would not enable him to show leniency. I think that was an important point of distinction between Irving and the applicant who, although he could not claim to be a first offender, had a record which did not trouble his Honour.
A further point of distinction between the two offenders was their respective ages. Irving, the half-brother was an experienced man of mature years. The applicant had not long entered adulthood. This difference may explain why the applicant was prepared to join in the renewal of the attack on Irving’s invitation.
His Honour distinguished between the two offenders in adjusting for the applicant the relationship between non-parole and parole periods under s44 Crimes (Sentencing Procedure) Act because of the more favourable record of the applicant and because he had never been to prison before. His Honour might have added that the applicant had demonstrated a greater need than Irving for an extended period of time on parole to rehabilitate himself. This distinction between the two was correctly made, in my view, but I think that the circumstances otherwise distinguishing the two offenders and summarised above called for the imposition on the applicant of a head sentence less than that imposed on Irving.
In my opinion the Court should interfere and quash the sentence imposed on the applicant. It should substitute a head sentence somewhat shorter than that imposed on Irving. I would leave the non-parole period unchanged, two years shorter than that imposed on Irving. The two-year difference reflects the difference between their respective objective and subjective cases. In my opinion six years is the shortest time the applicant should have to serve without parole for such a remorseless, vicious and injurious attack on an innocent member of the public. I would fix a period during which the applicant was eligible for release to parole greater than one third of the non-parole period for the reasons I have summarised above.
I propose the following orders –
Grant leave to appeal against sentence and allow the appeal.
Quash the sentence appealed from and impose in lieu a sentence of imprisonment. Fix a non-parole period of six years commencing on 23 December 2005 and expiring on 22 December 2011 and a balance of term, during which the applicant will be eligible for consideration for release to parole, of three years, expiring on 22 December 2014.
Declare that the first day upon which the applicant will be eligible for release to parole will be 22 December 2011.
PRICE J: I agree with Barr J.

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LAST UPDATED:
5 September 2008