Stevens v R

[2007] NSWCCA 152

New South Wales
Court of Criminal Appeal

CITATION:	Stevens v Regina [2007] NSWCCA 152
HEARING DATE(S):	16 May 2007
JUDGMENT DATE:	8 June 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hidden J at 2; Price J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - sentencing - affray - conduct of co-offender - gratuitous cruelty to animals and offence being committed in company not aggravating factors - sentence not manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 s 35(2), s 59(2), s 93C, s 112 Crimes (Sentencing Procedure) Act 1999 s 21A, s 21A(2), s 21A(2)(e), s 21A(2)(f), s 21A(2)(l), Criminal Appeal Act 1912 s 6(3)
CASES CITED:	R v Eleter [2003] NSWCCA 130 R v Fajka [2004] NSWCCA 166 R v H [2005] NSWCCA 282 R v Huynh [2000] NSWCCA 18 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v McNaughton [2006] NSWCCA 242 R v Palu [2002] NSWCCA 381 The Queen v De Simoni (1987) 147 CLR 383
PARTIES:	Colin Brian Stevens Regina
FILE NUMBER(S):	CCA 2007/943
COUNSEL:	Mr Craig Smith - Applicant Mr P Barrett - Respondent
SOLICITORS:	S. O'Connor (LAC) - Applicant S. Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/61/0069
LOWER COURT JUDICIAL OFFICER:	Andrew ADCJ
LOWER COURT DATE OF DECISION:	29 November 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Stevens

2007/943

McClellan CJ at CL
Hidden J
Price J

8 June 2007

Colin Brian STEVENS v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 HIDDEN J: I agree with the orders proposed by Price J, and generally with his Honour’s reasons. I find it unnecessary to determine whether it was open to the sentencing judge to find that the victims were vulnerable, within the meaning of s 21A(2)(I) of the Crimes (Sentencing Procedure) Act.

3 PRICE J: Colin Brian Stevens seeks leave to appeal against the severity of the sentence imposed upon him by Andrew ADCJ in the District Court at Dubbo on 29 November 2006.

4 The applicant had pleaded guilty on 27 November 2006 to an indictment which contained a single count alleging that [he] on 3 September 2005 at Warren used unlawful violence towards John Herring and Melinda Herring by conduct that would cause a person of reasonable firmness present at the scene to fear for their safety. The offence being one of affray contrary to s 93C of the Crimes Act 1900 then carried a maximum sentence of five years imprisonment. His Honour sentenced the applicant to imprisonment for eighteen months with a non-parole period of twelve months. The applicant is eligible for parole on 27 November 2007.

Facts

5 Tendered on sentence without objection was a bundle of documents (exhibit A) which included an outline of facts and the Crown brief. What follows is drawn from the outline of facts. The applicant, with Michael Davis and Ben Madden, travelled to the property of John and Melinda Herring near Warren in an attempt to obtain possession of an unregistered vehicle YKS – 166. The owner of the vehicle had nominated Mr and Mrs Herring as being in possession of it. Upon arriving at the property, the applicant spoke to John Herring who at that time was only wearing a towel. Mr Herring, after entering his home to dress, returned to the applicant who was standing in the driveway immediately adjacent to the gate at the front yard. I now quote from the outline of facts:

“Upon his approach to Stevens, [Mr Herring] states that Stevens struck him to his face with his fist. The victim bears wounds to the interior of his mouth and exterior of his lip consistent with such an allegation. It is further alleged Stevens used a black baton that he had in his possession and struck Mr Herring a number of times to his head and torso.
Mrs Melinda Herring was similarly present at the location, having followed her husband from the home. She intervened in an attempt to assist her husband and was secured by the offender, Davis. It is alleged the offender, Davis, was in possession of a silver chrome tyre lever which he used a number of times to strike Mrs Herring to the head. As a result of these strikes Mrs Herring received four large wounds to her head that bled profusely. These wounds are consistent (sic) provided by Mrs Herring and her husband. She similarly corroborated the version of her husband relating to the assaults upon him.
Mr Herring states that during his struggle with Stevens he fell to the ground, on his knees and bears consistent grazing and cuts to his knees and feet in support of the same. He states he overpowered Stevens and took possession of the black baton. He alleges that he used the black baton to strike the accused Davis who was striking Mrs Herring to the head with the previously stated tyre lever.
Mr Herring indicated that he managed to free his wife from the hold of Davis and assist her through the front gate of their premises. During his retreat he sustained a number of injuries, a result of being struck with rocks allegedly thrown by offenders, Davis and Stevens. He further alleged that one of these rocks struck the front window of their premises causing it to smash.
At a point during the described assaults Madden, who accompanied the offenders, left the motor vehicle and joined Davis and Stevens. It is alleged he said ‘You’re going to get it you fat cunt’ accompanied by other offers of violence toward Mr Herring.”

6 Mrs Herring rang the police who arrived shortly thereafter. Davis and the applicant were taken to Warren Hospital. The applicant was admitted and treated for a number of broken ribs and Davis for head wounds which required stitches.

7 Upon admission to the hospital Mrs Herring received a number of stitches to her head to treat four wounds between five to fifteen centimetres in length. All wounds bled profusely. Mr Herring’s injuries which were described as serious in nature included abrasions and cuts to his feet, knees, torso, lip and mouth. He had a number of large marks on his back consistent with impact of “the stated weapons”.

8 Included in exhibit A was the applicant’s electronically recorded interview with police which provided a version of events inconsistent with the outline of facts. The solicitor for the applicant informed the Judge that, although there were conflicting versions in the tendered material, it was not necessary for him to determine “who or really how the violence erupted” and he added “on an objective basis, the offence of affray was constituted by our conduct and the conduct of others with us”. (POS at p2). The Crown agreed with that submission. The parties, however, did little to clarify for the Judge the facts upon which the applicant was to be sentenced.

9 This Court continues to emphasise that it is incumbent upon the parties in sentencing proceedings to identify with particularity which matters are in issue and to ensure that the agreed statement of facts does not contain material which aggravates the offence: see R v Palu [2002] NSWCCA 381.

10 In any event his Honour did find that the applicant and Davis were the aggressors. The applicant concedes that this finding was open to the Judge.

Subjective circumstances

11 The applicant did not give evidence before the Judge nor were any reports tendered. However, the solicitor for the applicant informed his Honour of the applicant’s subjective circumstances in submissions on sentence.

12 In his remarks on sentence (ROS at p6), the Judge summarised the subjective circumstances:

“As stated, the offender is now aged forty six. The information as to his background is sparse. His early record of troubles in the Children’s Court, in my view is indicative of an unsettled upbringing. He was employed as a shearer but suffered an injury some years ago and as a result, is now a pensioner. He lives near Lismore with his son, following separation or divorce from his wife. He is currently awaiting a knee replacement operation.”

13 It appears from the applicant’s criminal record that he was born on 8 February 1962 and at the time of sentence was aged 44 years and not 46 years as mentioned by the Judge. This apparent mistake was not of significance in the sentence imposed.

14 The Judge referred to the applicant’s unattractive criminal history. Having noted that the applicant’s first offence of violence was in 1981 when he was convicted of aggravated assault on a child, the Judge remarked (ROS at p5)

“…..of more seriousness, is that in 2000 he received a sentence of three years and two years parole period upon a conviction for maliciously inflicting grievous bodily harm with intent with a similar offence taken into account. He was then sentenced to four years with two years non-parole period for the offence of assault with intent to rob in company causing wounding. That sentence was cumulative upon the previous sentence so that he was released to parole on 31 May 2003 and was on parole until 31 May 2005. This offence was therefore committed within months of the expiration of that sentence.”

15 The Notice of Appeal identifies four grounds, namely:

The sentencing Judge erred in taking into account materials that would constitute a more serious offence.

The applicant was denied procedural fairness in that the sentencing Judge failed to warn those appearing for him that he proposed to take into account matters upon which the applicant was not given an opportunity to be heard.

16 Ground 3

The sentencing Judge erred by finding that the offence was not dissimilar to a home invasion.

17 Ground 4

The sentencing Judge erred by taking into account as an aggravating factor that the offence was committed in company.

18 Grounds 1 and 3 may be conveniently dealt with together as they are based on the following remarks on sentence made by the Judge. His Honour, said (ROS at 4):

“In my view this case is not dissimilar to a home invasion. They attacked both victims with extreme violence, so much so that the victim, Mrs Herring, was bashed on the head with a tyre lever obtained from their vehicle causing serious injury and hospitilisation. As such that is a particularly cowardly attack.
I take into account that this was carried out by the co-accused, Davis, but nevertheless, both of these persons were clearly acting in concert throughout this affair.

Mr Herring also required medical treatment……”

19 The applicant contends that the passages I have quoted support the view that the Judge took into account factors that would constitute, at least, the more serious offences of which he had been previously charged, namely, assault occasioning actual bodily harm in company and malicious wounding in company. He was being sentenced, the applicant argues, at least in part, for wounds to the head of Mrs Herring which were inflicted by the co-offender Davis. He should not have been sentenced on facts which included a wounding or aspect of actual bodily harm in company to either Mr or Mrs Herring.

20 A further contention for the applicant is that the Judge erred in equating the offence of affray with a “home invasion” in much the same way as it would be to take into account materials that would constitute a more serious offence or mistake the maximum penalty for an offence as being higher than it actually was.

21 Charges of assault occasioning actual bodily harm in company and malicious wounding in company, offences contrary to sections 59(2) and 35(2) of the Crimes Act, had initially been laid against the applicant. The maximum penalty for these offences is respectively imprisonment for seven and ten years. They were more serious offences than the offence of affray. The applicant’s plea of guilty for the offence of affray was accepted in full satisfaction of the indictment.

22 An offence contrary to s 112 of the Crimes Act is commonly referred to as a “home invasion” and carries a maximum penalty depending upon the existence of circumstances of aggravation of between 14 and 25 years. It is a more serious offence than the offence of affray.

23 The Judge in imposing sentence was not entitled to take into account circumstances of aggravation which would have warranted a conviction for a more serious offence nor was the applicant to be sentenced for some other more serious offence of which he had not been charged: The Queen v De Simoni (1987) 147 CLR 383

24 Section 93C of the Crimes Act relevantly provided:

“ Affray
93 C (1) A person who uses or threatens unlawful violence
towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 5 years.
(2) If 2 or more person use or threaten unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).”

25 In determining an appropriate sentence for an offence of affray contrary to s 93C of the Crimes Act an offender’s conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray are relevant. An offender, however, may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender: see R v Huynh [2000] NSWCCA 18, R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

26 His Honour found as I have mentioned that the applicant and Davis were the aggressors. Furthermore, it was open to the Judge to find that they had attacked both victims with extreme violence. The attack by Davis upon Mrs Herring with the tyre lever was part of the co-offender’s conduct which gave rise to the offence of affray. In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence.

27 The analogy drawn by the Judge to a “home invasion” and the references to Mrs Herring’s injury, it seems to me, were no more than indications by his Honour of the level of violence that was used in the affray. The injuries caused to Mr and Mrs Herring, although substantial, were not identified by the Judge as being aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Crimes (SP) Act). The Judge was clearly mindful that the applicant had faced more serious charges when he remarked (ROS at 6):

“He was previously facing more serious charges but pleaded guilty to this offence at the first opportunity when that became available.”

28 The length of the sentence that was imposed upon the applicant indicates that the remarks by the Judge of which the applicant complains had no material impact upon the sentence. His Honour’s consideration of the circumstances of the offence did not extend, in my view, so as to punish the applicant as if he had committed a more serious offence. I am unable to discern error on the part of the Judge and these grounds of appeal fail.

29 As to ground 2 of the appeal, the applicant submits that it was incumbent upon the Judge to warn the parties of his intention to find as aggravating factors pursuant to s 21A of the Crimes (SP) Act:

(a) Gratuitous cruelty (to the dogs); and

(b) Vulnerability

It was procedurally unfair, the applicant contends, to find those matters when they were not referred to at all in the outline of facts.

30 The Judge said (ROS at 5-6):

“…..An aggravating factor pursuant to s 21A is that.….there was gratuitous cruelty involved in relation to the attack on the victims’ animals and I would consider the victims to have been vulnerable in that they were living in a rural and isolated place without ready recourse to assistance.”

31 The Judge found a factor of aggravation to be “gratuitous cruelty involved in relation to the victims’ animals.” His Honour was referring to s 21A(2)(f) of the Crimes (SP) Act.

32 The outline of facts presented to the Judge did not refer to attacks upon the Herrings’ animals whereas Mr Herring in his record of interview did. Whilst the Judge was entitled to have regard to that material, he was not entitled to rely upon it in deciding upon the appropriate sentence. The applicant was not charged with an offence involving cruelty to animals but was charged with an offence of affray of which animal cruelty formed no part. With respect, his Honour was in error and to this extent ground 2 of the appeal is made out.

33 The vulnerability of Mr and Mrs Herring “in that they were living in a rural and isolated place without ready recourse to assistance” was identified by the Judge as being an aggravating factor. His Honour was referring to s 21A(2)(l) which provides:

“(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant.”

34 From the outline of the facts, it was open to the Judge to find that the victims of the applicant’s criminality were vulnerable because of where they lived. His Honour neither went outside the outline of facts nor did he sentence the applicant on a basis that differed in substance to the agreed facts: see Regina v H [2005] NSWCCA 282 [at 59]. The solicitor for the applicant had the opportunity of addressing the Judge on the material placed before his Honour. The Judge was not obliged to warn those appearing before him that he intended to make a finding of vulnerability. Procedural fairness was not denied to the applicant.

35 The Crown concedes that his Honour erred when he found as an aggravating factor that the offence was committed in company. The Judge was referring to s 21A(2)(e) of the Crimes (SP) Act. The offence of which the applicant was charged necessarily involved two persons and in these circumstances his Honour infringed the concluding words of s 21A(2) which provide:

“The court is not to have additional regard to any such factor in sentencing if it is an element of the offence.”

36 Although I have concluded errors arose in the application of s 21A, those errors did not significantly impact upon the sentence determined by his Honour. A high level of violence was used in the offence and there is little in the way of mitigation for it. His criminal antecedents did not entitle him to leniency. The applicant’s prior record of violent offending discloses that more weight is to be given to retribution, personal deterrence and the protection of the community than would otherwise be the case: R v McNaughton [2006] NSWCCA 242, R v M.A.K, R v M.S.K [2006] NSWCCA 381. An apparent concession by the Crown that a suspended sentence fell within an appropriate range [of sentence] was generous.

37 The Court should not form, in my view, as required by s 6(3) of the Criminal Appeal Act 1912 an opinion that “some other sentence is……… warranted in law and should have been passed”.

38 I propose that leave to appeal be granted, but the appeal be dismissed.

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