Spooner v R

[2009] NSWCCA 247

New South Wales
Court of Criminal Appeal

CITATION:	Spooner v Regina [2009] NSWCCA 247 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10 September 2009
JUDGMENT DATE:	28 September 2009
JUDGMENT OF:	Macfarlan JA at 1; Howie J at 23; Hislop J at 24
DECISION:	(1) Leave to appeal granted. (2) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - recklessly causing grievous bodily harm - using a glass as a weapon - whether sentencing judge erred in finding as to objective seriousness - whether sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Davies [2007] NSWCCA 178 R v Willett (NSWCCA, 21 August 1998, unreported) Sayin v R [2008] NSWCCA 307
PARTIES:	Mathew Neil Spooner (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/6604
COUNSEL:	A Francis (Appellant) S Dowling (Respondent/Crown)
SOLICITORS:	Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent/Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/6604
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	22 August 2008

CCA 2008/6604

MACFARLAN JA
HOWIE J
HISLOP J

MONDAY 28 SEPTEMBER 2009

Mathew Neil SPOONER v REGINA

Judgment

: The applicant pleaded guilty to an offence under s 35(2) of the Crimes Act 1900 of recklessly causing grievous bodily harm to Stephen Belcher on 27 October 2007. The maximum penalty for the offence is ten years imprisonment with the standard non-parole period being four years (see s 54D Crimes (Sentencing Procedure) Act 1999). On 22 August 2008 the applicant was sentenced by Hock DCJ to imprisonment for four years with a non-parole period of one year and ten months.

Factual circumstances

2 The circumstances in which the offence occurred were described by the sentencing judge in her Remarks on Sentence as follows:

“On 27 October 2007 the victim Mr Stephen Belcher was at the Bushranger Hotel at Largs with some friends. Mr Belcher had his right arm in plaster as he had broken his thumb playing rugby… [The offender was also drinking in the same establishment with a group that] comprised Mr Reid, Mr James and Mrs Pat Spooner, the offender’s father and mother, the offender and his twin brother.

… [Some members of the group containing the offender were observed by Ms Sullivan, the manager of the Hotel, to have been antagonising and acting aggressively towards Mr Belcher and members of the group that he was with]. Ms Sullivan then directed Mr Spooner and his family to leave the hotel, and Mrs Spooner encouraged this. They began to leave.

Unfortunately, about that time Mr Belcher and his friends also left, although a short time afterwards. When he left, Mr Spooner was confronted by Mr Belcher and one of his sons. Mr Spooner and Mr Belcher were arguing and Ms Sullivan saw that they were pushing each other. She walked across to them and stood between them. She then heard a glass smash and saw the offender punch Mr Belcher in the face with a glass in his hand. Mr Belcher was struck directly to his left eye and his face and his eye began to bleed profusely. Despite this, the offender and the other Spooner males continued to yell at him and his friends, inviting them to fight, swearing and shouting at them. They left the Hotel when Ms Sullivan told them that the police had been called.

Mr Belcher was taken … to Maitland hospital where he presented with a laceration to the left side of his nose and a penetrating wound to his left eye … A piece of glass, 3 centimetres by 3 centimetres was removed from the nose wound … He was transferred to John Hunter Hospital for emergency surgery. He suffered … complications with poor vision and extensive corneal damage and iris trauma … He underwent [further] surgery [and] continued to have complications … Mr Belcher now has [lost the use of his left eye and has] an artificial intraocular lens”.

The Sentencing Judge’s Reasoning

3 The sentencing judge described the offence as a “most serious and, disturbingly, not uncommon offence”. She noted that Mr Belcher had suffered scarring to his face and the loss of his left eye and went on to say:

“Aggravating features of the offence are that it involved the use of a weapon, namely, a glass. However, I accept the offender’s evidence that he did not deliberately arm himself with the glass but had it in his hand at the time he swung the blow and acted in that way because of his intoxication. The prosecution could not establish beyond reasonable doubt that the glass was smashed before the offender swung the hand holding it, as the Crown Prosecutor fairly conceded. Of course, had that been the case the offender would probably be facing an even more serious charge.

I accept that the offence was not premeditated and it came about because of the offender, in his intoxicated state, wrongly perceived that his father was being threatened.”

4 Her Honour then turned to subjective considerations. She noted the following:

• The applicant turned 18 years of age only a few months before the offence and on the night of the offence was having his first drink with his family in licensed premises.
• The evidence established that he was not the type of young man who frequently became intoxicated.
• His employer was supportive of him and gave evidence that he will re-employ the applicant on his release from custody.
• The applicant expressed remorse for his actions and apologised sincerely to the victim, his family and friends.
• A psychologist gave evidence that the applicant has “symptoms of an adjustment disorder with a mixed anxiety and depressed mood as a function of his concerns over his actions on 27 October”.
• The applicant has good prospects of rehabilitation.

5 Her Honour discounted the applicant’s sentence by 25 percent to reflect the utilitarian value of his plea of guilty and found that because he would benefit from a longer period of supervision on his release from what would be his first period in custody, special circumstances existed for the purposes of s 44 of the Crimes (Sentencing Procedure) Act.

6 Her Honour did not consider that there were any sentencing statistics that were of assistance to her task.

7 As to the fixing of the non-parole period, the judge said the following:

“I come now to consider whether it is appropriate to impose the standard non-parole period. I am of the view that this offence is above the mid range of objective seriousness for an offence of this type. While there was no premeditation and only a single blow was struck, the consequences for the victim have been life changing; that is, he has lost the sight of one eye at age twenty-three. Tasks such as driving are more difficult for him, quite understandably. He has lost the opportunity for employment in some particular fields. He has had to undergo a number of operations and will need further treatment.

However, I have determined that the standard non-parole period should not be imposed for the following reasons; first, the plea of guilty; second, the offender’s youth and good prospects for rehabilitation; third, the finding of special circumstances. Of course, the standard non-parole period is still relevant as a reference point in coming to the ultimate sentence, and I have considered it as such.”

Grounds of Appeal

8 In support of his application for leave to appeal against the sentence imposed upon him the applicant relies upon the following grounds:

1. The sentencing Judge erred in failing to make a finding that the applicant did not intend the use of the glass in the incident.
2. It was not open to her Honour to conclude that the offence was above the mid range of objective seriousness.


3. The sentence is manifestly excessive.

Ground 1: Intention to use the glass

9 Counsel for the applicant submitted that the sentencing judge did not make, but should have made, a finding as to whether or not the applicant intended to hit Mr Belcher with the glass. She submitted that the prosecution did not prove beyond a reasonable doubt that the applicant intended the use of the glass and referred to evidence given by the applicant during his examination in chief before the sentencing judge that he did not intend to use the glass. She also referred to the following portions of the Record of Interview of the applicant:

“Q.144 You hit him once?
A. Yes.
Q. 145 And then you swung around with your other hand?
A. Yep.
Q. 146 What hand did you have the glass in?
A. My left hand.
Q. 147 O.K. Were you going to hit him with that hand?
A. Yep.
Q.148 O.K. Did you know you had the glass in your hand?
A. Well, it was just like a reaction.

Q. 149 Yep.
A. First you hit someone with that hand and come around, its like---

Q. 150 Yep, When did you realise you had the glass in your hand?
A. When I did it. After I did it.

10 The applicant’s Counsel further submitted that the absence of a finding that the applicant intended to use the glass necessitated a conclusion that the offence was not, as the sentencing judge found, above the mid range.

11 I do not agree that the sentencing judge did not find that the applicant intended to hit Mr Belcher with the glass which was in his hand. Such a finding was implicit in the passage from the sentencing judge’s Remarks on Sentence quoted in [3] above. The judge found that an aggravating feature of the offence was that “it involved the use of a weapon, namely, a glass”. She could not have found that the applicant used the glass as a weapon unless she was of the view that the applicant knew he had the glass in his hand and intended to strike Mr Belcher with it. Consistently with that view her Honour found in the following sentence that “the applicant did not deliberately arm himself with the glass but had it in his hand at the time he swung the blow and acted in that way because of his intoxication”.

12 That her Honour simply referred to the use of the glass as a weapon without stating an explicit finding that the applicant was aware that the glass was in his hand at the relevant time is understandable in light of the content of the applicant’s submissions on sentence. Counsel for the applicant relied upon written submissions which included statements that “the offence involved the reckless use of a glass as a weapon” and that “the offender regarded himself as being provoked – although there was no a to warrant his use of the glass against the victim” (sic). The latter passage contained a typographical error: the words “no a” appear to have been intended to read: “nothing”.

13 It was not put either in these written submissions or in the oral submissions made on behalf of the applicant that the judge should find that the applicant did not intend to hit Mr Belcher with the glass. This was appropriate in light of the evidence before her Honour which included the following:

• That after striking Mr Belcher in the eye with the glass and after Mr Belcher commenced to bleed profusely, the applicant said “How do you like that you cunt”. There was evidence of this statement in the Statement of Facts tendered at the sentencing hearing and in the uncontested evidence of a number of witnesses. Such a statement by the applicant after he had lacerated Mr Belcher with the glass was not consistent with the applicant having only intended to strike Mr Belcher with his fist and having forgotten, until he hit Mr Belcher, that he had the glass in his hand
• That in his cross-examination the applicant said the following:
“Q. He was going to hit your dad--
A. Yeah.
Q. --when he got back up?
A. And that’s why I come into it and I hit him with the glass and that.”
…
Q. There was never a time when Mr Belcher sought to strike your father, was there?
A. He was coming straight for my father.
Q. And you say that’s why you hit him with the glass?
A. Yes.”
The applicant later conceded that Mr Belcher was not trying to hit the applicant’s father.

14 As the sentencing judge did in fact find that the applicant intended to use the glass and that finding was reasonably open to her Honour, the first ground of appeal cannot succeed.

Ground 2: Objective seriousness of offence

15 The applicant’s submissions in relation to this ground were largely dependent upon Ground 1 succeeding. In light of the fact that her Honour found that the applicant used the glass as a weapon and, as I have said above, thereby implicitly found that he was aware that he had the glass in his hand when he struck Mr Belcher and when account is taken of the seriousness of the injury to Mr Belcher, it is clear that her Honour’s assessment of the offence as above the mid range was not in error. In addition to the seriousness of the injury and the use of the glass as a weapon, the fact that the victim was vulnerable because he was unarmed and had an arm in a plaster cast and that the group of which the applicant was a part were the aggressors in the confrontation which occurred were matters supporting her Honour’s conclusion.

Ground 3: Whether the sentence was manifestly excessive

16 The sentencing judge referred to the decision in R v Willett (NSWCCA, 21 August 1998, unreported) where the applicant was sentenced to 20 months imprisonment including a minimum term of 15 months for a “glassing” offence. Her Honour commented that the applicant there had “a more powerful subjective case than this offender, and the injury was less severe”. These comments were in my view correct and no error has been shown in the way in which her Honour dealt with Willett’s case.

17 The applicant contended that his case was more like that considered in R v Davies [2007] NSWCCA 178 where “the swing at the victim was a reflex response to a perceived threat and … the use of the glass was not intentional”. As is apparent from what I have said above, the present case is different because the sentencing judge found that the glass was used as a weapon. As well, the injury suffered by the victim in that case was not nearly as serious as in the present case. In these circumstances, the decision to impose a suspended sentence of 10 months (the subject of an unsuccessful Crown appeal) is not of assistance to the applicant in the present case. Furthermore, the offence to which Mr Davies pleaded guilty was one with a maximum penalty of seven years imprisonment (s 35 Crimes Act 1900). The offence to which the present applicant pleaded guilty was one having a maximum penalty of ten years imprisonment. Section 35(2) of the Crimes Act, pursuant to which the present applicant was charged, only came into operation on 27 September 2007, exactly one month before the offence was committed.

18 Also relevant is the decision is Sayin v R [2008] NSWCCA 307 in which the applicant pleaded guilty to a charge of maliciously inflicting grievous bodily harm, for which the prescribed maximum penalty was imprisonment for seven years. No standard non-parole period was applicable. A sentence was imposed in the District Court of five years imprisonment with a non-parole period of three years. In that case, the offender punched a glass into the victim’s face in a public bar. The injuries suffered by the victim were considerably less than those suffered in the present case. The sentence imposed in the District Court was quashed on appeal and the applicant was sentenced to imprisonment consisting of a non-parole period of two years three months with a balance of term of one year six months.

19 The decision supports the view that the sentence imposed in the present case is not manifestly excessive, particularly when account is taken of the fact that the applicant in the present case was charged with an offence for which the maximum penalty was ten years, as distinct from the seven year period applicable to the offence with which Mr Sayin was charged. Indeed, Sayin would suggest that the present sentence was lenient rather than excessive.

20 In conclusion, I adopt the following comments made by Howie J (with the concurrence of McClellan CJ at CL):

“47 The offence, popularly known as “glassing”, is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty. In light of the fact that the maximum penalty for an offence under s 35(2), recklessly inflict grievous bodily harm, is now 10 years imprisonment, the increased maximum penalty should result in a marked increase in the penalty for offences of this nature. Had the sentence this Court is now substituting been imposed for the new offence under the Crimes Act with the increased maximum penalty, it would be arguably manifestly inadequate” (at [47]).

21 In my view the sentence imposed by her Honour was well within the range of sentences reasonably open on the evidence before her. Accordingly, this ground of appeal, as with the first and second grounds, cannot be sustained.

Proposed Orders

22 For the reasons given above, I propose the following orders:

(1) Leave to appeal granted.

(2) Appeal dismissed.

23 HOWIE J: I agree with Macfarlan JA.

: I agree with Macfarlan JA.

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29/09/2009 - Oversight - Paragraph(s) [19] the word "excessive" substituted for the word "inadequate" in last line.