Anderson v R

1. [1]

   MACFARLAN JA: On 23 August 2016 the applicant was arraigned in the District Court on the following charges:

2. [2]

   After pleading not guilty to Count 1 and guilty to Count 2, the applicant was tried before English DCJ and a jury on Count 1. On 26 August 2016 the jury returned a verdict of guilty on that count.

3. [3]

   Her Honour sentenced the applicant on 11 November 2016. In respect of Count 1 he was sentenced to a total term of imprisonment of 15 years commencing on 5 February 2015 and expiring on 4 February 2030, including a non-parole period of 11 years and 3 months commencing on 5 February 2015 and expiring on 4 May 2026. In respect of Count 2, he was sentenced to a fixed term of imprisonment of 15 months commencing on 5 February 2015 and expiring on 4 May 2016. The sentence in respect of Count 2 was thus wholly concurrent with that for Count 1.

4. [4]

   The Crown case, as implicitly accepted by the jury in respect of Count 1 and by the applicant’s guilty plea in respect of Count 2, was that the applicant was present in the home of Mr Schon, a friend of his, on the morning of 31 December 2014. An argument developed between them about a debt owed by Mr Schon to the applicant and Mr Schon asked the applicant to leave his premises. The applicant assaulted him and as he lay motionless on the ground, stomped on him and punched him. After Mr Schon was rendered unconscious, the applicant stole items belonging to him which were later recovered from the applicant’s premises.

5. [5]

   As a result of the attack Mr Schon suffered a severe traumatic brain injury. Medical reports tendered at the trial indicate that he has been left with severe physical, cognitive and communicative impairments which are of a high level, necessitating 24 hour a day nursing assistance. His prospects of improvement and recovery are extremely poor.

6. [6]

   The applicant now seeks, long out of time, to appeal against his conviction on Count 1 and the severity of his sentences on both counts.

EXTENSION OF TIME TO APPEAL

1. [7]

   Whilst the applicant appears to have filed a Notice of Intention to Appeal against both the conviction and sentence on 30 November 2016, he did not file a Notice of Appeal or Notice of Application for Leave to Appeal in the period of six months thereafter during which his Notice of Intention to Appeal had effect (r 3A of the Criminal Appeal Rules (NSW)). He did not file this until 27 June 2019, although he filed a further Notice of Intention to Appeal on 23 May 2019.

2. [8]

   The applicant seeks an order under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) extending the time for him to file a Notice of Appeal or Application for Leave to Appeal. The Crown opposes such an extension on the grounds that (i) the proposed appeals against conviction and sentence are without merit, (ii) the grant of an extension would be likely to have an adverse effect on Mr Schon’s family, and (iii) no proper explanation for the applicant’s very lengthy delay has been given.

3. [9]

   As the merits of the proposed appeals are of undoubted relevance to the exercise of the court’s discretion to extend time (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [33]), I turn first to consider the applicant’s prospects of success on appeal if an extension of time were to be granted.

THE PROPOSED CONVICTION APPEAL

1. [10]

   The applicant was represented by counsel at his trial but signed the documents filed in this Court (see [7] above) on his own behalf. Moreover, he appeared for himself at the hearing in this Court.

2. [11]

   His written ground of appeal against his conviction on Count 1 is stated in the following terms:

3. [12]

   This is a reference by the applicant to the fact that at the trial his counsel indicated to the Court in the presence of the jury that he accepted his guilt on the statutory alternative charge to Count 1, namely, causing grievous bodily harm while being reckless to causing actual bodily harm (s 35(1) of the Crimes Act). As expressly stated by his counsel to the jury in address, the applicant’s sole contention at trial was that he did not have, and the Crown therefore failed to prove beyond reasonable doubt, an intention to cause grievous bodily harm to Mr Schon.

4. [13]

   The applicant’s written submissions on appeal are in the following terms:

5. [14]

   The suggestion in these submissions that the applicant “simply defended” himself was not reflected in his case at trial or in his filed ground of appeal against conviction (see [11] above). Nor did the evidence at the trial (referred to below at [17] to [22]) leave room for any possible argument that the applicant was not guilty on Count 1 because he acted in self-defence. In particular, it is clear that the applicant at least had the option to ensure his safety by leaving the house. This was reflected in his address to this Court in which he referred to himself as having the choice of “fight or flight” and that he “chose to fight”. In these circumstances, the possibility of a defence of self-defence being available should not be entertained on appeal.

6. [15]

   In the absence of any other identifiable specific ground of appeal, the Crown, quite properly, proceeded on appeal on the basis that the applicant relied upon the ground that his conviction on Count 1 was “unreasonable, or [such that it] cannot be supported, having regard to the evidence” (s 6(1) of the Criminal Appeal Act).

7. [16]

   As is well-established, determination of such a ground of appeal requires the court to conduct an independent assessment of the whole of the record of the trial, considering both the nature and quality of the evidence, and to determine:

The evidence at the trial

1. [17]

   In its case, the Crown tendered a record of an interview that the police conducted with the applicant (“the ERISP”). In the answers recorded in it, the applicant said that he and Mr Schon had been friends and had known each other for about 10 years. He said that he stayed the night at Mr Schon’s home on 30 December 2014 and that in the morning Mr Schon asked him to leave. The following extracts from the Crown’s summary of the trial accurately summarise the applicant’s description recorded in the ERISP of what then occurred:

2. [18]

   The only other part of the Crown’s case which needs to be referred to for present purposes is the evidence concerning the consequences to Mr Schon of the applicant’s assault on him.

3. [19]

   First, Mr Schon’s mother, Mrs Schon, gave evidence that on 31 December 2014 she was called to Westmead Hospital to identify her son. She said that he was on life support and was initially in intensive care. He was subsequently transferred to the Brain Injury Unit at the hospital where he remained until March 2016. When released from hospital he was taken to a nursing home where he presently remains. Mrs Schon said that he is unable to lift his head, walk, talk or eat and that will never be able to move.

4. [20]

   Secondly, there was considerable medical evidence of Mr Schon’s condition. It is sufficient to refer to the report dated 30 September 2015 of Dr Joseph Gurka, head of the Brain Injury Rehabilitation Service at Westmead Hospital. In it, Dr Gurka stated that Mr Schon remained in a “minimally conscious state”, requiring a “tracheostomy tube for airway protection”, and “enteral feeding tube inserted into his stomach through the abdominal wall”. He is unable to take any food orally and is “incontinent of both bladder and bowel function”. Dr Gurka’s report continued:

5. [21]

   The applicant gave evidence in the defence case. His evidence-in-chief included the following:

6. [22]

   His cross-examination included the following questions and answers:

The merits of the proposed conviction appeal

1. [23]

   As indicated in [12] above, the only issue at trial was whether the Crown proved beyond reasonable doubt that when assaulting Mr Schon, the applicant intended to cause him grievous bodily harm. As to this issue, it is in my view clear that, having heard the medical evidence as to Mr Schon’s injuries and the applicant’s evidence as to how they were inflicted, it was open to the jury to conclude beyond reasonable doubt that the applicant intended to cause Mr Schon grievous bodily harm. The applicant admitted in his ERISP that whilst Mr Schon was on the ground the applicant subjected him to a prolonged beating by punching him to the face multiple times and stomping on his head multiple times. When asked in his ERISP how he thought that blood came to be on the heel of one of his shoes, the applicant said:

2. [24]

   Although in evidence at the trial (see [22] above) the applicant denied that he had stomped on Mr Schon’s chest area, the medical evidence established that Mr Schon had five broken ribs. The only possible source of these injuries was the attack on him by the applicant.

3. [25]

   It was for the jury to determine the intent with which the applicant did his admitted acts. It was entitled to infer that he had the proscribed intention from his actions (Bahri Kural v The Queen (1987) 162 CLR 502 at 504; [1998] HCA 16). An inference of the requisite intention was in my view an inevitable consequence of the applicant’s acts.

4. [26]

   In conclusion, I note that in his oral submissions to this Court, the applicant criticised his trial counsel for not acting on instructions that the applicant allegedly gave to him to rely upon the applicant’s good character at the trial. Assuming such instructions were given, a decision by his counsel not to act on the instructions was readily explicable as a sensible forensic decision, bearing in mind the applicant’s extensive criminal record to which I refer at [30] below (see R v Birks (1990) 19 NSWLR 677 at 683-4; 48 A Crim R 385; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [20]). The applicant’s contention would not therefore assist him on his proposed appeal.

5. [27]

   In these circumstances, it is clear that the guilty verdict on Count 1 was not unreasonable for the purposes of s 6(1) of the Criminal Appeal Act. An appeal on that basis would therefore have no prospect of success.

THE PROPOSED SENTENCE APPEAL

1. [28]

   In the absence of any more specific ground of proposed appeal being proffered by the applicant, the Crown has, again quite properly, treated the proposed ground of appeal as one of manifest excess. In the absence of demonstration of specific error, it is necessary in order to establish that ground to demonstrate that the sentence appealed against was “unreasonable or plainly unjust” (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]).

The sentencing judgment

1. [29]

   The sentencing judge concluded her observations on the objective seriousness of the Count 1 offence as follows:

2. [30]

   Her Honour then made the following findings:

   1. (1)

      The applicant has a chronic paranoid schizophrenia condition, the unremitting ongoing nature of his symptoms being due in large part to his non-compliance with treatment regimes.

   2. (2)

      There was no objective evidence of the applicant suffering any psychotic symptoms which impacted on his moral culpability for the offence.

   3. (3)

      The applicant has a “lengthy criminal history in New South Wales” which “contains convictions for significant acts of violence”.

   4. (4)

      The applicant showed “very little by way of remorse”.

   5. (5)

      The applicant’s prospects for rehabilitation are “extremely guarded” and “he [has] a moderate to high risk of re-offending”.

3. [31]

   Her Honour referred to the maximum penalty of 25 years imprisonment for the offence and the existence of a standard non-parole period of 7 years. She considered that general deterrence “need not be moderated” and that specific deterrence had a “significant role to play in the penalty to be imposed”. Her Honour declined to make a finding of special circumstances. In respect of Count 2, her Honour allowed a 25% discount as a result of the applicant’s plea of guilty.

The merits of the proposed sentence appeal

1. [32]

   It is undoubted that a sentencing judge is entitled to have regard to the harm done to Mr Schon by the commission of the crime (Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [29]). As Howie J (with the concurrence of Giles JA and Fullerton J) said in R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [27]:

2. [33]

   The catastrophic consequences to Mr Schon in the present case are apparent from [19] to [20] above. The sentencing judge had appropriate regard to them, and to their impact on the lives of Mr Schon’s elderly parents and other family members. As the sentencing judge said, “[t]he impact upon the victim has been profound and the impact on his family has also been substantial in that they attend the nursing home every day praying for a miracle” (see [29] above).

3. [34]

   The degree and nature of violence used by the offender is likewise an important consideration in sentencing. In AM v The Queen [2012] NSWCCA 203; (2012) 225 A Crim R 481, Johnson J (with the concurrence of McClellan CJ at CL and Garling J) stated at [74] that “[t]he fact that a s 33 offence involves an unprovoked, uncalled for and unjustified attack elevates its objective gravity” (citing Matzick v The Queen [2007] NSWCCA 92 at [23]).

4. [35]

   In AM v the Queen, his Honour took into account that the attack in that case “involved escalating violence against a victim whose condition was obviously deteriorating” and that when the victim was lying prone on the ground shaking, “the applicant attacked his head by means of kicking and stomping” (at [78]). His Honour continued (at [79]):

5. [36]

   These observations are applicable in a general sense to the applicant’s conduct in the present case.

6. [37]

   Other matters of particular significance that her Honour also took into account in the present case were that (i) the offence was committed in Mr Schon’s home, (ii) in her Honour’s view both general and specific deterrence were required, (iii) the applicant’s criminal history elevated the need for specific deterrence, (iv) the applicant was on conditional liberty (in respect of an offence of common assault) at the time of the s 33 offence, (v) the applicant’s prospects for rehabilitation were “extremely guarded”, and (vi) there was a moderate to high risk of him re-offending. Her Honour also had appropriate regard to other subjective circumstances of the applicant including his mental health history.

7. [38]

   Taking all these matters into account, but particularly the catastrophic injuries to Mr Schon, the savagery of the applicant’s attack and the legislative guideposts of the maximum penalty and the standard non-parole period for the s 33 offence, I have concluded that the sentence that her Honour imposed in respect of the Count 1 offence was within the range of those open to her to impose and was not either unreasonable or unjust. In respect of Count 2, it was in my view open to her Honour to sentence the applicant to a fixed term of imprisonment for 15 months. This sentence was in fact wholly concurrent with the sentence in respect of Count 1.

CONCLUSIONS

1. [39]

   For the reasons appearing above, I consider that neither the proposed conviction appeal nor the proposed sentence appeal would have any prospect of success if the applicant were permitted to pursue it. In these circumstances, I consider that the extension of time sought by the applicant should be refused. The likely adverse effects on Mr Schon’s family of the grant of an extension of time and the lack of a proper explanation of the applicant’s delay provide additional support for this conclusion.

2. [40]

   I accordingly propose that the application for an extension of time be refused.

3. [41]

   JOHNSON J: I agree with Macfarlan JA.

4. [42]

   CAVANAGH J: I agree with Macfarlan JA.