Burnham v R

1. [1]

   GARLING J: I agree with the orders proposed by Ierace J, and with his Honour’s reasons.

2. [2]

   IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence imposed on him by her Honour Judge Payne in the District Court on 31 October 2024, following his plea of guilty to an offence of recklessly inflicting grievous bodily harm, contrary to s 35(2) of the Crimes Act 1990 (NSW).

3. [3]

   The maximum penalty for the offence is 10 years imprisonment: s 35(2) of the Crimes Act. It has a standard non-parole period of 4 years imprisonment: Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). Her Honour sentenced the applicant to a term of imprisonment of 4 years and 5 months, that commenced on 24 January 2024 and will expire on 24 June 2028, with a non-parole period of 2 years and 9 months, to expire on 24 October 2026.

4. [4]

   The applicant advanced three grounds of appeal:

The sentence proceedings

1. [5]

   The applicant entered a plea of guilty while the matter was still in the Local Court. He was 28 years old at the time of the offence and 30 at the time of sentence. The sentencing hearing took place in what was clearly a busy sitting week in Armidale, commencing on Monday 29 October 2024. The parties’ written material was handed up and the following day (30 October 2024) they commenced their submissions. The Crown was granted an adjournment to the following day to consider its position in respect of certain material that had been tendered by the defence. The hearing proceeded to finality on 31 October 2024, and her Honour delivered judgment later that day.

2. [6]

   A statement of agreed facts that was tendered as part of the Crown bundle was to the following effect.

3. [7]

   The applicant and victim were “drug associates”. On 14 April 2023, the applicant was in Gyra. At about 3:45pm, while putting fuel in his vehicle, he saw the victim nearby, seated in a car. The applicant approached the victim and an argument between them ensued over a sum of money which the applicant believed the victim owed him.

4. [8]

   The two men argued, which escalated when the victim exited the car and elbowed the applicant in his mouth, causing his upper lip to split open. The agreed facts continued:

5. [9]

   Witnesses provided first aid to the victim. Ambulance officers intubated him and he was flown to John Hunter Hospital for continued treatment. He was placed in an induced coma on arrival. On 20 April 2023, he was gradually woken from the coma, however, on 28 April 2023, he was readmitted to the intensive care unit because of fluctuations in his Glasgow Coma Score. The victim gradually recovered, having been transferred to Armidale Hospital on 1 July 2023 and was then ultimately discharged.

6. [10]

   Following the assault, the applicant drove to Guyra Hospital where his lip wound was sutured. He told hospital staff that he had hit his head on a brick wall. At about 7:40pm that evening, police spoke to him. Their conversation was recorded on body worn video. The applicant told police that the victim owed him money, that the victim was being a “smart arse”, saying he was not going to pay him and that the victim hit him in the lip, splitting it and causing it to bleed.

7. [11]

   The applicant said that he acted in self-defence by putting his arms around the victim who ended up on the ground. The applicant said that he then “blacked out”. The assault stopped when a nearby resident yelled for the applicant to stop assaulting the victim and told him to get away. The applicant walked back to his car and went to the hospital where he received 12 stitches in his lip, which he showed to the police officers. Police seized the applicant’s shoes for forensic analysis. Blood located on the right shoe was found to have the same DNA profile as that of the victim.

8. [12]

   The applicant was arrested four months later, on 25 August 2023. He participated in a recorded police interview and declined to comment on the allegations. He was refused bail and remained in custody on remand until his sentence, 14 months later.

9. [13]

   The victim’s injuries were described in the agreed facts as follows:

The applicant’s criminal history

1. [14]

   The applicant’s adult criminal history commenced when he was aged 18 with a conviction for possession of a prohibited drug, for which he received a community service order (CSO). The applicant had a spate of offending between December 2018 and February 2019. On 7 December 2018, when he was aged 23, he committed an assault occasioning actual bodily harm in company, for which he received a sentence of imprisonment of 4 months. Six weeks after that offence, on 27 January 2019, he supplied a commercial quantity of cannabis, for which he received an intensive correction order (ICO) for a period of 15 months. I note that the conditions of release were that he partake in treatment programs that included anger management counselling. A month after the supply offence, on 20 February 2019, he committed a common assault, for which he received a community correction order (CCO) for 6 months.

2. [15]

   In September 2022, the applicant committed the offences of recklessly dealing with the proceeds of crime, two counts of larceny and destroy or damage property. On 10 January 2023, he committed the offence of destroying property in a domestic violence context. On 20 March 2023, that is, less than a month before this offence, he was sentenced for the September 2022 offences, for which he received an aggregate ICO for a period of 16 months, commencing on 20 March 2023 and expiring on 19 July 2024, and a CSO for 100 hours. A condition of the ICO was that he abstain from using alcohol and drugs and complete 100 hours of treatment programs for drugs and alcohol use. On the same date, he was also sentenced for the January 2023 offence, receiving a fine and a 2 year CCO, to commence from the date of sentence, a condition being two years abstention from the use of drugs.

3. [16]

   The applicant was convicted and fined for driving with an illicit drug in his blood on 18 December 2022, 23 April 2023 and 1 July 2023. The last two offences led also to convictions for driving while disqualified. He received a sentence of 3 months imprisonment for the 1 July 2023 drive while disqualified offence, commencing on 11 October 2023.

4. [17]

   Following his arrest in August 2023 for the instant offence, the State Parole Authority revoked the ICO imposed on 20 March 2023, so that the applicant’s time as a prisoner on remand for this offence was concurrent with his sentence for the September 2022 offences, until it expired on 19 July 2024.

5. [18]

   The defence tendered a report by a Forensic Psychologist, Kris North, dated 24 October 2024, which canvassed the applicant’s background and personal circumstances. It was to the following effect.

6. [19]

   The applicant was the eldest of three children to his parents, the others being twin boys. His parents separated when he was two years old. His mother moved with him and his brothers to her parents’ farm. They died two years later. His mother struggled to manage the farm alone and bring up the three children, venting her stress on the children. The applicant recalled her hitting him with a belt and a horse whip.

7. [20]

   When the applicant was 15, his mother re-married and the family moved into a town. The following year, his family moved on to another town and did not invite him to go with them. He stayed behind, in the same town as his father. He described a sense of abandonment and neglect from his mother and does not currently have contact with her. She has an Apprehended Domestic Violence Order against him following an incident in which her property was damaged.

8. [21]

   The applicant was bullied in primary school. He said that he was sexually assaulted when aged 11 by a school groundskeeper. Consequent to this incident, he reported experiencing anger and sadness and found it difficult to regulate his emotions, leading to him being aggressive “as a means of venting his emotions”. From that time, he rebelled at home and engaged in fighting at school.

9. [22]

   He was asked to leave high school due to fighting and completed year 10 at a different high school, thereafter commencing work as a gardener and farm labourer. At the time of his arrest, he was learning to be a shearer and hopes to return to following that vocation upon his release from prison.

10. [23]

    As to his drug use, the applicant reported smoking cannabis from 15 or 16 years of age and using it habitually until his arrest. He used methamphetamine from the age of 24 and regularly from the age of 26. He had been using buprenorphine illicitly since entering custody and had applied to go onto the buprenorphine maintenance program.

11. [24]

    As to any connection between the applicant’s aggressive behaviour following the sexual assault and the offence, Ms North said:

12. [25]

    The applicant stated that he was professionally assessed as to his mental health for the first time in 2023, following a threat of self-harm. He was referred to a psychologist for treatment (which I presume to be counselling) and had been prescribed an antidepressant. The applicant said that during the treatment, which lasted six months, he had started addressing his unresolved trauma issues and learning how to manage his emotions more effectively. He noted that the medication had assisted in stabilising his mood. Ms North said:

13. [26]

    Ms North was of the opinion that the applicant satisfied the criteria for a Cannabis Use Disorder and Stimulant Use Disorder, Amphetamine type substance. She considered that there were differential diagnoses that warranted further assessment for a Post-traumatic Stress Disorder (PTSD); Major Depressive Disorder (MDD); and a Generalised Anxiety Disorder (GAD). Although she did not formally make a diagnosis of PTSD, Ms North said: “it was apparent that unresolved trauma issues underlie his difficulties in managing his emotions”.

14. [27]

    With respect to the offence, the applicant told Ms North that he had used methamphetamines and cannabis that day and described himself as having been “scattered” at the time. He said he “blacked out” in a rage and had no memory of jumping on the victim’s head. He had been shocked when told that victim needed to be intubated to breathe and was worried that he might die. He expressed remorse and accepted responsibility for his actions.

15. [28]

    The Crown submitted in writing that the objective seriousness of the offending was “above the mid-range”, given the applicant had stomped on the victim’s head more than once, which caused significant injuries and which required him to crawl under a car for safety, and that the applicant had not stopped the attack of his own volition. Although the offending did not involve a conventional weapon, “in a practical sense, [the applicant’s] feet that were used could be deemed as a type of weapon to attack the head of the victim”. The Crown modified its position on objective seriousness in oral submissions to the offence being “within the mid-range”.

16. [29]

    The Crown submitted that “significant emphasis” ought to be placed on specific deterrence, community protection and denunciation, having regard to the applicant’s prior convictions for matters of personal violence.

17. [30]

    The defence submitted that the sentence should commence on the date of the applicant’s arrest, so that it was entirely concurrent with the sentences of imprisonment following the breach of the ICO and for driving while disqualified.

18. [31]

    The defence noted in its written submissions relevant statutory mitigating factors, including that the offence was not part of a planned or organised criminal activity and that the applicant was provoked by the victim:

19. [32]

    Counsel for the applicant expanded in oral submissions:

20. [33]

    In response in those oral submissions, the Crown said:

21. [34]

    The defence also referred to the evidence of the applicant’s remorse and his early plea of guilty, which entitled him to a statutory 25 per cent discount on sentence.

22. [35]

    In written submissions, the defence accepted that the determination of the objective seriousness of the offence depended upon the seriousness of the wounding: McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 Howie J (McClellan CJ at CL and Simpson J agreeing) at [37]. The injuries suffered in the offence were described as follows:

23. [36]

    The defence submitted that the objective seriousness of the offence fell “just below the mid-range”, taking into account that the offence did not involve a weapon and the “impulsive” nature of the offending.

24. [37]

    It was submitted that the applicant’s moral culpability was reduced by the impact of the episode of child sexual abuse he suffered, relying upon Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 per Bell P at [12]. The defence submitted that, pursuant to that authority, that experience is relevant to the sentencing exercise, although the weight to be attributed to it in determining moral culpability “is another matter”, in combination with the applicant’s history of childhood deprivation, which included parental separation, abuse and his regular drug use, which were relevant in the manner explained in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44].

25. [38]

    The defence also submitted that the applicant’s mental condition, as diagnosed by Ms North, constituted a “mental disorder or disability” so as to be taken into account on sentencing.

The remarks on sentence

1. [39]

   The sentencing judge referred to the maximum penalty and standard non-parole period for the offence. Her Honour referred to, and implicitly accepted, the applicant’s expression of remorse and responsibility for the offence and that his actions had been “excessive”.

2. [40]

   The sentencing judge read onto the record the agreed facts. Her Honour described the consequences of the applicant using his foot, in a shoe, on the head of the victim while it was on the ground, as “catastrophic”. Her Honour noted the applicant was 16 years younger than the victim.

3. [41]

   As to the subjective case, her Honour highlighted the applicant’s history of childhood deprivation, child sexual abuse and Ms North’s diagnoses. Her Honour observed that the applicant’s criminal record “disentitles him to leniency”. On the issue of rehabilitation, her Honour found that his prospects depended upon “his ability to cease drug use”. On reoffending, her Honour said:

4. [42]

   Her Honour addressed the issues of moral culpability and general deterrence together, saying:

5. [43]

   Her Honour accepted that the nature and extent of the injuries were central to the issue of objective seriousness, but:

6. [44]

   Her Honour continued:

7. [45]

   Her Honour found special circumstances by reason of the applicant’s “requirement for assistance to reintegrate into the community and help for his mental conditions and drug addictions”. Her Honour noted the proximity of the offending to the imposition of the ICO and its revocation and proposed to start the sentence from “five months into that sentence”, which was 25 January 2024.

8. [46]

   The starting point of the sentence was 6 years imprisonment, reduced by 25 per cent for the early guilty plea to 4 years and 5 months, with a non-parole period of 2 years and 9 months; a non-parole period to total sentence ratio of 62 per cent.

The sentencing judge erred in failing to take into account that the applicant was provoked by the victim

1. [47]

   Both grounds contend that the sentencing judge failed to acknowledge and take into account these two statutory mitigating factors: ss 21A(3)(b) and (c) of the Sentencing Procedure Act. Counsel for the applicant noted that although the sentencing judge expressly referred to other relevant statutory sentencing factors, no reference was made in the remarks on sentence to the absence of planning and the victim’s provocation, and it could not be inferred that they had been considered or taken into account. Counsel referred to the need for transparency of the Court’s reasoning: Taylor v R [2018] NSWCCA 255 at [52], but acknowledged that a failure to expressly identify a relevant s 21A(3) factor did not necessarily mean it had not been taken into account: Attwater v R; Marks v R [2021] NSWCCA 17 at [430].

2. [48]

   It was submitted that both factors ought to have been reflected in the remarks on sentence: they were relevant to the determination of the objective seriousness and, in any event, formed part of the circumstances of the offending. They had been expressly relied upon by the defence in submissions on sentence and there had been a dispute between the parties as to whether they were applicable.

3. [49]

   The Crown responded that remarks on sentence must be read fairly as a whole and without an unduly critical textual analysis, particularly if the sentencing remarks were delivered ex tempore, as they were here.

4. [50]

   The applicant submitted that the Crown’s submission on sentence that a lack of planning had no application to an offence involving a reckless act was misconceived, citing as an example to the contrary in Patrick v R; Whitney v R [2020] NSWCCA 63 at [62]-[68] (Patrick v R; Whitney v R). It was accepted that a lack of planning does not always have a mitigatory bearing on objective seriousness, for example, in cases involving repeated domestic violence (Kennedy v R [2022] NSWCCA 215 at [47]-[53]). However, in the circumstances of this case, it had mitigatory relevance. In oral submissions, the applicant succinctly submitted that the real issue is whether it could be inferred that the sentencing judge took it into account, notwithstanding that there was no reference to it in the sentencing remarks.

5. [51]

   The Crown responded that although the sentencing judge did not refer in terms to the absence of planning or to s 21A(3)(b) of the Sentencing Procedure Act, it is apparent from “a full and fair reading” of the sentencing judgment that her Honour had regard to the circumstances of the offending, including that it was unplanned and that there was no suggestion that the applicant’s infliction of the injuries was other than spontaneous.

Consideration

1. [52]

   The parties in the sentence hearing agreed that the offence had not involved planning and that it was not part of a planned or organised criminal activity. The Crown’s broad submission to the sentencing Court that an offence of this type could not involve a degree of planning is incorrect, as demonstrated, for example, by the circumstances of the particular offence of reckless wounding in company which were canvassed in Patrick v R; Whitney v R. As to whether it was open to the sentencing judge to have found that there was planning of the offence as an aggravating factor, Button J (Meagher JA and Harrison J agreeing), said:

2. [53]

   It is not apparent from the remarks that her Honour had rejected the Crown’s submission that the offence, by its nature, could not involve planning. However, that is beside the point, since the Crown accepted that the offence did not involve planning (albeit because, in its view, it could not). The question for determination is whether the sentencing judge took that factor into account and did so in favour of the applicant, including in mitigation of the offence.

3. [54]

   The remarks on sentence were delivered immediately after oral submissions, in which counsel for the defence submitted: “there was no planning here, your Honour, it was something that was spur of the moment”. The Crown immediately agreed that there was no planning. The remarks were brief, being five and a half A4 pages in length, double-spaced. Although her Honour did not mention the issue of planning, her reading into the remarks of the agreed facts do not allow for any reasonable inference other than that her Honour sentenced the applicant on the basis that the offence was spontaneous, which is, at least in the circumstances of this offence, synonymous with it being unplanned. As noted at [43] above, her Honour accepted the defence submission that the seriousness of the offence was to be principally gauged by the seriousness of the wounding, although her Honour added that the reason and circumstances of the offence were not irrelevant.

4. [55]

   I would grant leave for this ground of appeal and dismiss the ground.

5. [56]

   The applicant submitted that there was evidence before the sentencing Court which established that the victim provoked the applicant, by elbowing him in his mouth with sufficient force for the injury to his lip to require 12 sutures. The applicant’s physical response, as acknowledged in the agreed facts, was initially by way of self-defence. The applicant referred to authority to the effect that provocation, if established, “is a fundamental quality of the offending which may reduce its objective seriousness”: Williams v R [2012] NSWCCA 172 per Price J (Allsop P and Campbell J agreeing) at [42].

6. [57]

   The applicant referred to defence counsel’s oral submissions in which he noted that the attack “wasn’t on a stranger, there was provocation involved”. Counsel later elaborated:

7. [58]

   The applicant submitted, in relation to this passage:

8. [59]

   And later:

9. [60]

   In written submissions, the applicant referred to the partial defence to the offence of murder of extreme provocation (s 23 of the Crimes Act) as a source of understanding of the meaning of “provoked” in the context of s 21A(3)(c) of the Sentencing Procedure Act. It was suggested that, on this basis, the personal circumstances of the applicant may be taken into account, in particular (as I understand the applicant’s submission) the applicant’s explanation that he “blacked out” as evidence of a “loss at some level of self-control”, in weighing its impact on objective seriousness, relying on observations in R v Fahda [2013] NSWCCA 86 by Simpson J at [7], [25] (R v Fahda).

10. [61]

    The Crown submitted that it is apparent from a fair reading of the remarks that the sentencing judge, in conformity with the agreed facts, accepted that the applicant’s conduct was, initially at least, a defensive response to the conduct of the victim; her Honour took into account that the applicant’s offending was precipitated by the escalation in the verbal confrontation instigated by the victim. Her Honour’s approach to the conduct of the applicant’s defensive response reflected the agreed facts, and the manner in which the proceedings were conducted on behalf of the applicant. Defence counsel’s oral submissions had concentrated on self-defence and included only passing reference to the applicant having been “provoked”.

11. [62]

    The Crown submitted that the submission on appeal that the defendant had a loss of self-control was not put below and, in any event, a “black-out” was contrary to the evidence, in view of the applicant giving a false account of his injury to hospital staff and an account to police of his actions immediately before and after the stomping on the victim’s head. Further, any provocation was so disproportionate to the offence that it was not mitigatory in the circumstances of the case: R v Mendez [2002] NSWCCA 415 per Howie J (Sully J agreeing) at [16].

12. [63]

    The remarks on sentence should be considered in context of how the defence put provocation to the sentencing Court. In written submissions, counsel identified the issue as a relevant statutory factor in mitigation but did not develop that submission, instead focussing on the impulsiveness of the stomping, following a fight in which the applicant was acting in self-defence:

13. [64]

    In oral submissions in the passage extracted above at [57], on my reading, counsel referred to provocation in the same way, that is, contextually, whereas the offending behaviour was explained by being “spur of the moment”. Provocation and self-defence explained the commencement of the physical confrontation with the victim but were not relied upon as contributing factors to the offending behaviour.

14. [65]

    Accordingly, the applicant’s submissions on provocation cast the issue in a different light to how it was put below, in which case this Court ordinarily would be slow to intervene: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[81]. In view of how provocation was put below, it is understandable that the sentencing judge did not mention it as a matter of mitigation.

15. [66]

    Had defence counsel emphasised provocation, that is, retaliatory anger, as the applicant’s motivation for the attack, he would have drawn attention to the applicant's explanation to Ms North that he was “scattered” at the time due to his ingestion of methamphetamine and cannabis, and that his rage-related blackouts occurred particularly when he was under the influence of methamphetamine. There was little to be gained by doing so. A submission that the applicant’s conduct was mitigated by the applicant’s intoxication was not available. Such a submission would have run afoul of s 21A(5AA) of the Sentencing Procedure Act, which provides that an offender’s self-induced intoxication cannot be taken into account as a mitigating factor.

16. [67]

    Accordingly, the approach of defence counsel was forensically sound. It was to the advantage of the applicant to minimise the role of the applicant’s anger and focus instead on the offence being a spontaneous response to the circumstances brought about by the need for him to, at least initially, defend himself.

17. [68]

    It follows that it is unnecessary to consider the applicant’s submission that subjective elements of provocation, such as a loss of self-control, should be imported into the notion of provocation as that term appears in s 21A(3)(c) of the Sentencing Procedure Act for the purposes of determining objective seriousness.

18. [69]

    As to ground 2, I would grant leave and dismiss the ground.

19. [70]

    Counsel for the applicant submitted that the sentencing judge fell into error by having regard to all of the injuries sustained by the victim, in circumstances where the three rib fractures, abrasions and bruising to the chest may have been referable to his actions in lawful self-defence. The only injuries consequential to the stomping on the victim’s head, that is, the “gravamen of the offence”, were the brain injuries.

20. [71]

    The Crown submitted that her Honour sentenced the applicant in accordance with the agreed facts, which canvassed all of the injuries sustained by the victim. The applicant had not identified a submission made by the defence on sentence that sought to differentiate which injuries her Honour was permitted to take into account and those which were not, and contended that it would be “nigh on impossible” to divide the injuries sustained between when the applicant was acting in self-defence and during the course of him stomping on the victim’s head.

21. [72]

    The sentencing judge referred to the injuries that were occasioned by the offence in precisely the same terms as they were described in the defence’s written submissions and, more particularly, in the agreed facts. In those circumstances, in my view, it would be inappropriate to inquire beyond the agreed facts in the absence of evidence that there was a misunderstanding or oversight, such as might be the subject of evidence from a legal representative who appeared at first instance.

22. [73]

    The sentencing judge focussed on the stomping injuries to the victim’s head and did not mention the other injuries, including the fractured ribs, other than in recounting the agreed facts. In my view, no error has been demonstrated in this ground.

23. [74]

    I would grant leave and dismiss this ground as well.

24. [75]

    Accordingly, I would grant leave for all three grounds and dismiss the appeal.

25. [76]

    DHANJI J: I agree with the orders proposed by Ierace J for the reasons his Honour gives.