Waterfall v R

[2019] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Waterfall v R [2019] NSWCCA 281
Hearing dates:	9 October 2019
Date of orders:	25 November 2019
Decision date:	25 November 2019
Before:	Macfarlan JA at [1] Johnson J at [2] Cavanagh J at [3]
Decision:	(1)   Leave to appeal is granted. (2)   The appeal is dismissed.
Catchwords:	Crime — appeals — appeal against sentence — application for leave to appeal — recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) — whether sentencing judge erred in assessment of objective seriousness of the offence — no principle that the nature of injuries sustained necessarily determines the assessment of objective seriousness — where offender was correctional officer in position of trust and authority over the victim who was an inmate — whether sentence imposed was manifestly excessive — not demonstrated that sentence was unreasonable or plainly unjust
Legislation Cited:	Crimes Act 1900 (NSW), ss 33, 35 Crimes (Administration of Sentences) Act 1999 (NSW), s 2A Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(k)
Cases Cited:	Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 House v R (1936) 55 CLR 499; [1936] HCA 40 McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Channells (Court of Criminal Appeal (NSW), Hunt CJ at CL, Ireland and Dunford JJ, 30 September 1997, unrep) R v Lamella [2014] NSWCCA 122 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Stevens v R [2017] NSWCCA 216 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Simon Glen Waterfall (Applicant) Regina (Respondent)
Representation:	Counsel: Ms C Wasley (Applicant) Ms K Jeffreys (Respondent)   Solicitors: Proctor & Associates (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/26543
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 6 July 2017 Before: Culver DCJ File Number(s): 2014/26543

Judgment

1. MACFARLAN JA: I agree with Cavanagh J.

2. JOHNSON J: I agree with Cavanagh J.

3. CAVANAGH J: By notice of application for leave to appeal filed on 5 July 2019, the applicant seeks leave to appeal from a sentence imposed by the District Court at Parramatta on 6 July 2017 with respect to one count of recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The applicant was charged with and pleaded not guilty to three counts relating to an alleged assault on Robert Stines (“the victim”) on 26 December 2013 whilst the victim was an inmate at Parklea Correctional Centre. The applicant was at the time a correctional officer employed by GEO Group Pty Ltd, being a private contractor to manage the Parklea Correctional Centre.

4. The applicant was found not guilty of the first charge of causing grievous bodily harm with intent to cause grievous bodily harm under s 33(1)(b) of the Crimes Act. The applicant was found guilty on the second count, an offence carrying a maximum penalty of 10 years imprisonment with a standard non-parole period of 4 years. No verdict was required in respect of the third count.

5. The applicant was sentenced to a total term of five years and nine months to expire on 6 January 2023 with a non-parole period of three years and nine months commencing 7 April 2017 and expiring on 6 January 2021.

6. The applicant relies on two grounds of appeal being:

1. The sentencing judge erred in her assessment of the objective seriousness of the offence; and

2. The sentence imposed was manifestly excessive in the circumstances of the case.

Background Facts

7. Whilst there were some limited issues as to facts between the parties on sentencing, the applicant has not taken any issue with the sentencing judge’s determination of factual matters in dispute or the summary of facts tendered on sentencing.

8. On the afternoon of 26 December 2013 the victim, whilst acting in his capacity as a sweeper at the Parklea Correctional Centre, was cleaning a common area outside the officers’ station where correctional officers usually congregated. The victim found a plastic drink bottle. He put it in the cell of another inmate. The drink bottle belonged to the applicant.

9. The applicant used the PA system to call for the victim to attend the officers’ station. The victim attended the officers’ station where he was met by the applicant. He said that they were going for a walk to the clinic. The applicant then led the victim out of the officers’ station into a secured walkway that led to the clinic. This walkway was not directly covered by close range CCTV cameras, but it was captured by a long range CCTV camera.

10. After the victim and the applicant arrived in the walkway, three other correctional officers joined them. The victim was challenged by the applicant as to whether he had the applicant’s water bottle. The victim said that he did and he would return it, although that was disputed by the applicant.

11. Immediately thereafter, the applicant punched the victim at least three times to the jaw. As a result of the punches the victim fell to the ground. He did not retaliate or defend himself. The other correctional officers did not come to his aid or intervene. The applicant then asked the victim about the drink bottle again. The victim was led back into unit 5B by the applicant and collected the bottle and returned it to the officers’ station.

12. At around 10pm, whilst the victim was locked in his cell, he complained to the two correctional officers conducting the lock-in of pain to his jaw. One of the officers was present during the assault. The victim said he needed to go to the clinic. He was escorted to the nurses’ clinic where he was seen by a nurse. The escorting officer told the victim to tell the nurse that he had slipped over in the shower. The victim told the nurse that he had walked into a wall as he feared a further assault if he reported the incident. The nurse assessed the victim’s injuries as minor.

13. During that evening the victim’s cellmate continually pressed the duress alarm in the cell as the victim was complaining of severe pain and asking to see the nurse. He was not taken to the nurses’ clinic and was not provided with any pain medication. On being released from his cell the next morning he again requested to be taken to the clinic. He was assessed by a different nurse and then transferred to hospital for treatment.

14. On 27 December 2013 he was assessed at Westmead Hospital as having a visible facial injury including oedema or swelling to the left side of his mandible lower jaw, malocclusion, his teeth not fitting properly, and numbness to the left side of his lower lip and chin. X-rays revealed a displaced fracture on the left angle of the mandible. He was required to undergo surgery. He was discharged from hospital two days later. The surgery involved making an incision inside the mouth on his cheek, removing the wisdom tooth in the fracture line, temporarily wiring the jaws together, realignment of the fracture and placing a permanent four-hole titanium plate secured by four titanium screws.

15. On 30 December 2013, the applicant was asked by his employer to complete an incident report relating to the assault. He did not disclose any assault or physical act against the victim. Indeed, he has never admitted the assault. The applicant did not give evidence at trial or at the sentencing hearing.

Remarks on Sentence

16. The sentencing judge identified three areas of factual dispute being firstly whether the assault involved three punches; secondly whether there was a conversation about the water bottle as a precipitating event to the assault; and thirdly whether the victim’s name was called over the PA prior to the assault.

17. As referred to by the sentencing judge, in his earlier interview the victim had suggested there were five punches. Throughout the trial he insisted there were three to four punches. Critically, the video footage taken from a distance was played to the jury by zoom. The sentencing judge found, having regard to her observation of the CCTV footage on zoom, that there were at least three punches. It was never put to the victim that there was only one punch. Indeed, the applicant’s version was that he had merely slapped the victim. This was not put to the victim.

18. The sentencing judge accepted the victim’s version of events that there was a precipitating conversation about the water bottle and that the victim was called for over the PA.

19. Although there was evidence that the victim had a learning disorder and a developmental disability, the respondent did not rely on that feature in terms of its submissions relating to the vulnerability of the victim.

20. Considerable emphasis was placed on the fact that the applicant had authority over the victim. There was a power differential which was an aggravating factor. As the sentencing judge found:

“For a prison officer to assault an inmate, given that power differential, a very serious matter of aggravation arises. It is a matter which calls for condign punishment. It is a matter which calls for a great emphasis to be placed on general deterrence and specific deterrence.”

21. Further the sentencing judge highlighted the fact that, although the offence could have been concluded by one punch, there were three punches. Her Honour considered that as a serious aspect of the offending conduct. The sentencing judge made findings as to the objective gravity as follows:

“The objective gravity of the offending, given the combination of circumstances I have referred to, despite the injury being at the lower end of the scale for grievous bodily harm as conceded by the Crown at para 60 of the written submissions, nonetheless, must encapsulate that vast power differential when a prison officer assaults an inmate in the circumstances as I have described. That is a very salient feature informing the objective gravity. I am of the view that the balance of features causes this matter to be seen as falling within the upper mid-range of criminality for this offence.”

22. The sentencing judge went on to consider overall moral culpability. Firstly, the sentencing judge noted that the applicant had previously been disciplined in respect of his position regarding an assault earlier at the same correctional centre by another correctional officer of another inmate. There had been a finding that the applicant had been deliberately untruthful in the information he had provided relating to that assault. He was subject to a disciplinary hearing. He received a final written warning for termination of employment. The sentencing judge considered that this impacted upon any finding as to good character.

23. The sentencing judge observed that it was troubling that, within months of that experience, the applicant had committed the offence the subject of these proceedings. Her Honour did not, however, increase the moral culpability merely for that reason.

24. The sentencing judge observed that there was no discount available as the applicant was found guilty following a trial. He had no criminal history.

25. Further, whilst the applicant said he was willing to engage in counselling, he demonstrated no insight into the matter and continued to deny the assaults. There had been no evidence given on oath concerning remorse and the sentencing judge exercised caution in respect of the prospects of rehabilitation. As the sentencing judge found, the applicant is entitled to deny his involvement to the full extent but his denials deny him a proper finding of remorse and contrition.

26. The sentencing judge found special circumstances on the basis that, as conceded by the Crown and submitted by the applicant, the applicant’s experience in prison would involve protective custody with restriction of movement and restriction of access and that would contribute to a more onerous experience of custody.

27. The sentencing judge said that considerable weight must be given to general deterrence in accordance with s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) and further that the court must recognise the harm to the victim and give some measure of denunciation as a sentencing purpose. After considering a number of other cases in respect of offences under s 35 of the Crimes Act, her Honour had regard to the principle of proportionality and the statutory guideposts. She then made a finding that the very serious nature of the offending could only be reflected in a custodial sentence and that only a full time custodial sentence was appropriate.

Ground 1

28. The principal point relied upon by the applicant in respect of Ground 1 is that the sentencing judge failed to give sufficient weight to the fact that the injuries sustained as a result of the assault were at the lower end of the scale for grievous bodily harm. The error identified by the applicant is that the offence is said to be principally a results-based offence and that the sentencing judge thus erred in finding an upper mid-range of objective seriousness despite the lower end of the range for the type of injury.

29. The applicant relied on the statement of Bellew J (Hoeben CJ at CL and Davies J agreeing) in Stevens v R [2017] NSWCCA 216 to the effect that an important aspect in sentencing for this type of offending is that the result of the offender’s conduct and the nature of any injury caused to the victim will, to a significant degree, determine the seriousness of the offence and the appropriate sentence. However, that is not the only matter to be taken into account as again was emphasised in McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 (“McCullough”) at [37]. As observed by Howie J, the manner in which the injury was inflicted, the reason for the infliction of the injury and the circumstances surrounding the offence are relevant.

30. Further, Ground 1 is very much in the nature of a complaint that the sentencing judge erred in not placing enough weight on the result of the assault in assessing objective seriousness (in the sense of considering it the most important factor).

31. The applicant acknowledges that the power differential was a significant aggravating factor and the fact that it was an unprovoked assault with pre-meditation must increase the objective seriousness of the offence but emphasises that the fact that the injuries sustained were at the lower end of the scale for grievous bodily harm ought to have determined the assessment of objective seriousness to a significant degree. The problem with that submission is that it is necessary for the applicant to demonstrate error of the type referred to in House v R (1936) 55 CLR 499; [1936] HCA 40 (“House v R”), that is an error of fact, principle or unreasonableness in a process which necessarily involves a consideration of a range of factors and an evaluative judgment.

32. In Mulato v R [2006] NSWCCA 282, Spigelman CJ stated at [37]:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. ...”

33. The applicant draws the Court’s attention to those cases which tend to suggest the importance of the nature of the injuries sustained as if, as a matter of principle, the nature of the injuries sustained must always be the determining feature when assessing objective seriousness. Whilst it may be that in some cases the most significant factor will be the nature of the injuries sustained there is no rule or principle which mandates that it will be the most important factor or necessarily determine the assessment of objective seriousness. This, of itself, makes it difficult for the applicant to overcome the threshold point of establishing some error of fact or principle in accordance with House v R.

34. Further, there are other matters which the sentencing judge correctly identified as impacting upon the assessment of objective seriousness and, in particular, giving rise to matters of aggravation. Specifically, the sentencing judge identified the vast power differential which arises when a correctional officer assaults an inmate in the circumstances described. This has statutory force, as in s 21A of the Sentencing Procedure Act, an aggravating factor is listed as being that the offender abused the position of trust or authority in relation to the victim: s 21A(2)(k).

35. The sentencing judge did not make a finding that inmates are generally vulnerable. However, the applicant was necessarily in a role involving a position of trust or authority over the victim. The applicant plainly had authority over the victim and the victim was entitled to assume that the applicant would not abuse his position of authority.

36. The role of the correctional officer is not merely to ensure that the general community is protected but also to ensure that the prisoners are kept under supervision in a safe, secure and humane environment and manner. This is given force by virtue of s 2A of the Crimes (Administration of Sentences) Act 1999 (NSW) as follows:

2A.   Objects of Act

(1)   This Act has the following objects –

(a)   to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment,

(b)   to ensure that other offenders are kept under supervision in a safe, secure and humane manner …

37. The sentencing judge regarded the breach of trust or authority and abuse of power as a significant aggravating factor and no error has been demonstrated by the applicant in that regard.

38. The exercise of determining objective seriousness for the purposes of sentencing for an offence under s 35 of the Crimes Act may in most cases be influenced by the nature of the injury sustained but there is no rule or principle which requires that to always be either a determining or even a critical feature in assessing objective seriousness. To adopt such an approach would be to unnecessarily fetter the broad discretion available to the sentencing judge.

39. In R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [147], Spigelman CJ said:

“The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. …”

40. In Wong v The Queen (2001) 207 CLR 584 at 612; [2001] HCA 64, Gaudron, Gummow and Hayne JJ held:

“So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. …” (Emphasis in original.)

41. Further, as submitted by the Crown, it is evident from a number of cases that the result of the assault, that is, the extent of the injury, has not always been considered the dominant factor in assessing objective seriousness: see R v Channells (Court of Criminal Appeal (NSW), Hunt CJ at CL, Ireland and Dunford JJ, 30 September 1997, unrep) at 12; McCullough at [37].

41. In the circumstances of this particular offending, the sentencing judge was entitled to give significant weight to the relationship of trust as an aggravating factor rather than find, as the applicant suggested the sentencing judge should have, that the most important or critical factor was the extent of the injuries sustained by the victim.

42. The finding as to objective gravity of the offence was open to the sentencing judge in this case.

43. Ground 1 is not made out.

Ground 2

45. The applicant submits that the sentence is manifestly excessive. The principles to be applied are set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443] as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

●   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

●   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

●   It is not to the point that this Court might have exercised the sentencing discretion differently.

●   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

●   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

46. The applicant acknowledged that manifest excess will only be established if, after consideration is given to all the matters that are relevant to the sentence, the Court concludes the sentence imposed is unreasonable or plainly unjust: see Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59]–[60].

47. In his submissions, the applicant emphasised the subjective features such that he had no prior criminal record, his offending was out of character, he previously served the community, he had a lengthy history of employment, he had good character (generally) and that he expressed a willingness to engage in ongoing counselling and had good prospects of rehabilitation. The applicant also emphasised the objective features to which I have already referred.

48. In submitting that the sentence was unreasonable or plainly unjust, the applicant acknowledged that the fact that he was a correctional officer was a salient feature but submitted that this fact alone did not render insignificant the positive subjective case and years of contribution as a law abiding citizen.

49. In my view, the effect of the submissions under Ground 2 was merely to ask this Court to review the subjective features and objective factors and come to a different view. Such an approach is contrary to the approach set out in Obeid as well as many other cases. It is for the applicant to establish that the sentence was unreasonable or plainly unjust. Further, it is for the applicant to demonstrate that some misapplication of principle must have occurred in this case. When the misapplication of principle is not evident from the ROS then it is for the applicant to establish that the sentence imposed is so far outside the range of sentences available that there must have been error.

50. The sentencing judge was provided with a list of cases relating to sentences for offences under s 35 of the Crimes Act. The point was to demonstrate some relationship between the injuries sustained and the level of sentence. However, as the sentencing judge pointed out, a number of those cases involved a plea of guilty and the circumstances were quite different. As the sentencing judge said, there is no one case that incorporates the matrix of circumstances in this matter.

51. There is no case to which the sentencing judge was referred which involved a serious offence of violence by a correctional officer against a prisoner as occurred in this case.

52. Further, the sentence reflects appropriately matters of general deterrence and denunciation: s 3A of the Sentencing Procedure Act as well as R v Lamella [2014] NSWCCA 122 at [57] (in which the matter of general deterrence was emphasised in an offence committed by a customs officer which involved a breach of trust and authority).

53. The applicant has not demonstrated that the sentence imposed was unreasonable or plainly unjust. The sentence imposed was a substantial one, but it reflected the gravity of the offence committed by the offender, even allowing for aspects of the applicant’s subjective case which assisted him on sentence.

Orders

54. In all of the circumstances I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

**********

Decision last updated: 25 November 2019