Stevens v R

1. [1]

   HOEBEN CJ AT CL: I agree with Bellew J.

2. [2]

   DAVIES J: I agree with Bellew J.

3. [3]

   BELLEW J: On 28 September 2016 an indictment was presented against Troy Richard Stevens (“the applicant”) containing the following counts:

   1. (1)

      On the 25th day of June 2015, at Bondi Junction in the State of New South Wales, caused grievous bodily harm to Francis Noble-Shelton with intent to cause grievous bodily harm (count 1).

   2. (2)

      On the 25th day of June 2015, at Bondi Junction in the State of New South Wales, recklessly caused grievous bodily harm to Francis Noble-Shelton (count 2).

4. [4]

   The applicant pleaded guilty to count 2, which was expressed as an alternative to count 1. That plea was accepted by the Crown in full discharge of the indictment. The offending in count 2 was contrary to s. 35(2) of the Crimes Act 1900 (NSW) (“the Act”). The maximum penalty applicable to that offence is imprisonment for 10 years. A standard non-parole period of 4 years is prescribed.

5. [5]

   On 21 November 2016 the applicant was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months. He now seeks leave to appeal against that sentence on the grounds more fully set out below.

The facts of the offending

1. [6]

   The sentencing judge found the facts of the offending to be as follows (commencing at ROS 3):

2. [7]

   Tendered before the sentencing judge were photographs taken of the victim whilst in hospital following the assault, together with DVD footage of the incident. That material was also before this Court and I have viewed it. The photographs depict the victim with a heavily bloodied face and obvious trauma to the left temporal region. The DVD footage is a compilation obtained from a number of different cameras in and around the area where the incident took place. One excerpt of footage clearly shows the applicant running after the victim from behind for some distance, before punching him on the right side of his face. As set out in the facts, the victim had his back turned towards the applicant at the time and would obviously have had no warning that he was about to be struck. The force of the blow caused the victim to fall immediately. He struck the roadway with the left side of his face and was rendered unconscious.

The applicant’s criminal history

1. [8]

   Of particular significance is the fact that at the time of the offending, the applicant was awaiting sentence in the Local Court for an offence of assault occasioning actual bodily harm which had occurred on 17 November 2013. The victim in that case suffered a number of facial injuries including fractures of the nose and eye socket. As with the present offending, the offending in November 2013 happened in a public place, without provocation and in circumstances where the victim was previously unknown to the applicant. The applicant was eventually sentenced on 24 July 2015 to a term of 15 months imprisonment with a non- parole period of 6 months.

The applicant’s evidence on sentence

1. [9]

   The applicant gave evidence before the sentencing judge which centred upon his efforts towards rehabilitation since being taken into custody following the commission of the offence. He said that he had been employed in custody and had completed a number of courses, including a drug and alcohol rehabilitation course entitled “eCliPSE”. He told the sentencing judge (commencing at T6 L32) that at the time of the offending he was under the influence of cocaine but that he had not taken any illicit drugs since entering custody. He expressed his remorse for the offending (commencing at T7.7) and was then asked to recount the circumstances in which it occurred (commencing at T7.45):

The applicant’s subjective case

1. [10]

   Tendered in the applicant’s case on sentence were the following documents:

2. [11]

   The applicant’s letter included the following:

3. [12]

   Having apologised to the victim and expressed his remorse for his offending, the applicant went on to state:

4. [13]

   The testimonial material tendered on behalf of the applicant was generally supportive of him, particularly as to his efforts towards rehabilitation.

5. [14]

   Ms Godbee reported (at [15] and following of her report) that the applicant had given a history that he had commenced to use MDMA at age 17, that he had switched to using cocaine at the age of 21, and that this had continued up until the time of his arrest. She also reported (at [17]) that the applicant had told her that he had suffered from a gambling addiction since the age of 17, in respect of which he was spending approximately $500.00 per week. In terms of the applicant’s offending, Ms Godbee said (commencing at [23]):

6. [15]

   In her psychological assessment of the applicant, Ms Godbee noted the applicant’s reported history that he had been diagnosed with depression by Justice Health staff shortly after being taken into custody, and had described experiencing a low mood since the age of 17. However, Ms Godbee did not diagnose the applicant as a suffering from any specific mental illness. In terms of her conclusions she said (commencing at [31]):

7. [16]

   Ms Godbee recommended (inter alia) that the applicant engage in a residential rehabilitation program to manage his behaviour, and that he engage in individual psychological treatment in order to challenge his beliefs supportive of violence, learn skills to manage low mood, stress and anger, and improve his interpersonal skills.

8. [17]

   The sentencing judge summarised (commencing at ROS 2) the testimonial and associated material which had been tendered on behalf of the applicant before saying (at ROS 3):

9. [18]

   His Honour made specific reference (at ROS 6) to the applicant’s efforts toward rehabilitation before allowing a 10% discount to reflect his plea of guilty (at ROS 6). He acknowledged (commencing at ROS 8) the “very significant support” expressed by the authors of the character references, and generally accepted the evidence given by the applicant. His Honour observed that the applicant’s reference to the “unintentional damage” he had caused was not reflective of the true nature of the offending, but nevertheless found (at ROS 9) that the applicant was remorseful, that he had favourable prospects of rehabilitation, and that he had community support. All of those factors led his Honour to the view that, providing the applicant undertook treatment for his anger management issues, he had “good prospects of not coming before the criminal justice system again”.

The evidence and submissions before the sentencing judge

1. [19]

   The statement of agreed facts which was tendered before the sentencing judge recorded the following in relation to the injuries sustained by the victim:

2. [20]

   In the sentence proceedings, counsel then appearing for the applicant addressed the sentencing judge in relation to the extent of the injuries sustained by the victim as a consequence of the offending. The following exchange is recorded (commencing at T14.47):

3. [21]

   The Crown’s written submissions before the sentencing Judge (at [30]) recorded the following:

The reasons of the sentencing judge

1. [22]

   The sentencing judge (commencing at ROS 5) summarised that part of the agreed facts as set out at [19] above. Having done so, he said (at ROS 5-6):

2. [23]

   His Honour then said (at ROS 7):

3. [24]

   His Honour then said (at ROS 10):

Submissions of the applicant

1. [25]

   Senior counsel for the applicant submitted that the observations of the sentencing judge made it clear that he had given a primacy to the contusion to the victim’s brain and had treated it as an injury of considerable seriousness. It was submitted that the evidence did not support the conclusions reached by the sentencing judge in that regard. It was emphasised, in particular, that the evidence did not establish that the brain injury was life threatening, that it required any treatment, that it caused any ongoing symptoms, or that it resulted in any disability.

2. [26]

   It was further submitted that notwithstanding his Honour’s stated intention to determine the sentence on the evidence before him, it should be reasonably inferred that his appraisal of the seriousness of the victim’s injuries “was affected by some understanding of the nature and severity of the injury not established by the evidence in the proceedings”. It was submitted, in particular, that the evidence did not warrant the injury being described as “horrific”, and that the evidence did not support a conclusion that the offending fell slightly below the mid-range.

3. [27]

   Senior counsel further submitted that the conclusion reached by the sentencing judge as to the seriousness of the victim’s injuries was an obviously important consideration in assessing the objective seriousness of the offending. He submitted that in all of the circumstances, this Court should conclude that an extraneous consideration had affected the exercise of that discretion by the sentencing Judge.

Submissions of the Crown

1. [28]

   The Crown emphasised that there was no dispute that the victim’s injuries amounted to grievous bodily harm or, in other words, really serious bodily injury. The Crown also emphasised the nature of those injuries, the treatment which was required, and the ongoing sequelae which had been reported by the victim. The Crown drew particular attention to the fact that the injuries had resulted in permanent scarring and a prolonged period (in the nature of 6 to 12 months) of paralysis of the victim’s left forehead, and that complete recovery was unlikely. It was submitted that in these circumstances, and particularly bearing in mind the photographs of the victim and the CCTV footage of the incident, his Honour’s description of the injuries, and his assessment of the objective seriousness of the offending, did not reflect error.

2. [29]

   In terms of the applicant's submission that the sentencing judge had taken into account extraneous considerations, the Crown submitted that it was evident from the sentencing remarks that his Honour had in fact taken particular care to ensure that he did not, in assessing the objective seriousness of the offending, use any personal knowledge he may have had regarding the nature of the victim’s injuries.

CONSIDERATION

1. [30]

   In my view, there was no error on the part of the sentencing Judge in his assessment of the seriousness of the injuries sustained by the victim, nor was there any error in his assessment of the objective seriousness of the offending. A haemorrhagic contusion of the brain is a traumatic brain injury. The fact that it apparently produced no ongoing sequelae does not mean that it was not significant. Moreover, it was not the only injury, and the victim has been left with permanent scarring and a prolonged period of paralysis of the left forehead. He also suffers from (inter alia) intermittent headaches, vivid flashbacks, nightmares and rapid mood swings. The injuries were obviously serious and his Honour’s conclusions were justified.

2. [31]

   Further, the submission that the sentencing Judge “was affected by some understanding of the nature and severity of the injury not established by the evidence in the proceedings” runs completely contrary to what the sentencing Judge actually said. His Honour emphasised, in quite specific terms, that in assessing the severity of the victim’s injuries he was not engaging in any speculation based on any knowledge that he may have had of any medical condition to which reference was made in the evidence. There is no reason to conclude that his Honour acted in any contrary way.

3. [32]

   For these reasons, this ground is not made out.

Submissions of the applicant

1. [33]

   Senior counsel for the applicant submitted that generally speaking, offences of this nature were “result offences”, such that their seriousness generally depended upon the seriousness of the injury inflicted. Whilst senior counsel specifically acknowledged that this was not the sole determinant of the objective seriousness of the offence, he submitted that the injuries inflicted in the present case did not constitute a serious example of grievous bodily harm, and that there was little in the facts and circumstances of the offending, apart from the injury itself, that tended to indicate any higher level of seriousness.

2. [34]

   Senior counsel emphasised that the conduct constituting the offending comprised a single act which:

3. [35]

   In these circumstances, and bearing in mind that the findings of the sentencing judge regarding the applicant’s subjective circumstances were largely favourable, it was submitted that a starting point of 5 years imprisonment before applying a discount for the utilitarian value of the applicant’s plea was excessive.

4. [36]

   In advancing these submissions, senior counsel referred the court to a number of comparative cases which, he submitted, tended to “reinforce the impression” that the sentence imposed in the present case exceeded the boundaries of the proper exercise of sentencing discretion.

5. [37]

   In all of these circumstances, it was submitted that a lesser sentence was warranted in law.

Submissions of the Crown

1. [38]

   The Crown also referred the Court to a number of comparative cases which, it was submitted, were reflective of the wide ranging circumstances in which this particular offence can be committed. The Crown submitted that an examination of these cases demonstrated that the sentence imposed upon the applicant was within the range of an appropriate exercise of sentencing discretion.

2. [39]

   The Crown pointed, in particular, to:

CONSIDERATION

1. [40]

   In R v Mitchell; R v Gallagher [2007] NSWCCA 296, the respondents to appeals brought by the Crown against the sentences imposed had pleaded guilty to maliciously inflicting grievously bodily harm within intent to do grievous bodily harm, contrary to s. 33 of the Act. Whilst that is obviously a different offence from that to which the applicant pleaded guilty, a number of observations made by Howie J as to the general nature of this type of offending are apposite. Whilst his Honour observed (at [27]) that an important aspect in sentencing for this type of offending is the result of the offender’s conduct, and that the nature of any injury caused to the victim will, to a significant degree, determine the seriousness of the offence and the appropriate sentence, he did not go so far as to say that the result of the conduct is the only consideration to be taken into account. That this is so was emphasised by his Honour in a subsequent decision of R v McCulloch [2009] NSWCCA 94 at [37]. Whilst that was a case of malicious wounding, his Honour’s observations remain apposite to the present offending:

2. [41]

   In AM v R [2012] NSWCCA 203 Johnson J reviewed a number of authorities concerning considerations relevant to sentencing for an offence against s. 33(1) of the Act. Again, this was not the offence to which the present applicant pleaded guilty but it remains the case that a number of his Honour’s observations are relevant in the present context. Some of the factors which his Honour identified as bearing upon the determination of an appropriate sentence included:

3. [42]

   In the present case, senior counsel for the applicant emphasised that the offending was not planned or premeditated, that it did not involve the use of a weapon, and that it was constituted by only one punch. All of that is correct. At the same time, the degree of violence was high. The one blow which was struck, about which the victim had no forewarning, was sufficient to cause him to immediately fall to the ground and strike his head. He was rendered unconscious. On the facts found by the sentencing Judge (which were not challenged by the applicant on the hearing of the present application) the attack was entirely unprovoked. Whilst there had been some exchange between the victim and the applicant’s friends a short time earlier, the fact remains that the attack was perpetrated on the victim at a time when he was walking down the street completely defenceless, essentially minding his own business, and in circumstances where the respondent had to run after him in order to strike the blow which felled him.

4. [43]

   I have had regard to the authorities to which the Court was referred by senior counsel for the appellant and by the Crown. It might be said that the sentence imposed upon the applicant was stern. However, for the reasons outlined, I am unpersuaded that the sentence was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54.

5. [44]

   For all of these reasons this ground is not made out.

ORDERS

1. [45]

   I propose to the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.