Soars v R

1. [1]

   THE COURT: Following a trial before a jury and Weinstein SC DCJ (the trial judge) in the District Court, commencing on 11 July 2022, the Applicant, Mr Jason Soars, was convicted on 21 July 2022 of one count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW).

2. [2]

   The offence related to an incident which occurred on 31 March 2021 after 10.28pm in which Mr Stevan Thoms (the victim), who was walking home from the Railway Hotel in East Maitland, was struck by a man wielding nunchucks out the front of a property located in Anne Street, East Maitland (the Property). At the time of the attack, the Applicant was living in the Property with his brother, Mr Lyndon Soars (Lyndon), mother and nephew, IF. The Applicant and the victim were completely unknown to each other at the time of the offending.

3. [3]

   The victim’s significant and life-threatening injuries were summarised in a statement of agreed facts. It was conceded by the Applicant at trial that the victim’s injuries were sufficient to constitute grievous bodily harm.

4. [4]

   The Crown case against the Applicant at trial was largely circumstantial. It relied on a number of circumstances which, when taken together, were said to exclude the reasonable possibility that anyone other than the Applicant could have been responsible for the attack upon the victim. Those circumstances included the fact that the nunchucks used in the attack, which were found in a room in the Property that the Applicant had been using as a bedroom, bore his DNA as well as that of the victim, the fact that the victim’s mobile phone was also found in the same room in the Property, descriptions of the assailant offered by third party eyewitnesses that were consistent with the Applicant’s appearance and the fact that the Applicant left the Property by car very shortly after the attack, just after 10.30pm on a Wednesday night, and drove to Queensland.

5. [5]

   The Crown also relied upon the evidence of Lyndon to the effect that he heard a voice outside the Property on the night of 31 March 2021 and that it “sounded like” the Applicant. The Applicant’s trial counsel applied for a warning to be issued to the jury pursuant to s 165 of the Evidence Act 1995 (NSW) (the Evidence Act) in respect of the reliability of that evidence on the basis that Lyndon was a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. The trial judge declined to give the jury such a warning on the basis that the evidence was not of a kind that may be unreliable and because, taking into account all of the evidence in the case, Lyndon could not have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings.

6. [6]

   A trace swab was taken from the handle of the nunchucks found in the Property for DNA analysis. That analysis revealed that there were three contributors to the swab, namely the victim, the Applicant and “an unknown unrelated individual”. The Applicant did not contest the presence of his own DNA on the nunchucks. Ms Rebecca Williams (forensic scientist) gave evidence that she could not exclude the possibility that the third contributor to the DNA profile recovered from the handle of the nunchucks was an individual related to the Applicant but that “there is so little information in that profile that I can’t compare it to anybody” and that that was the reason why she could not exclude that possibility.

7. [7]

   The Applicant’s case at trial was that the Crown had not excluded the possibility that Lyndon, or IF, was responsible for the attack. The Applicant relied heavily on the accounts of Mr Sam Hackworthy and Ms Jessica Dowdell who were driving down Anne Street at around the time of the attack. Their evidence was to the effect that they saw the victim lying on the right-hand side of the road opposite the Property and that, in the vicinity of the victim, was a man with “short hair” wearing jeans and a light coloured t-shirt. Mr Hackworthy’s evidence was also that he saw the man attempting to enter a white vehicle parked at the front of the Property which belonged to Lyndon, although in his statement to police he had only said that the man was moving towards the vehicle. It was the Applicant’s submission that the man described by Mr Hackworthy and Ms Dowdell met the description of Lyndon, rather than the Applicant. This was despite the fact that the Applicant had said on a number of taped telephone calls that Lyndon was asleep at the time of the attack (which was also Lyndon’s evidence, he having been called as a witness in the prosecution’s case). Parked close to the white car at the front of the Property was a silver hatchback which was the vehicle in which the Applicant left the Property very shortly after the victim was attacked.

8. [8]

   On 25 October 2023, the Applicant was sentenced by McGrath SC DCJ (the sentencing judge) to 9 years’ imprisonment commencing on 27 April 2021 and expiring on 26 April 2030, with a non-parole period of 6 and a half years expiring on 26 October 2027.

9. [9]

   By way of a draft Notice of Appeal filed on 20 August 2024, the Applicant sought leave to appeal from his conviction on the basis that the trial judge failed to give the jury a warning pursuant to s 165 of the Evidence Act as to the unreliability of the evidence of Lyndon and that the conviction was unreasonable in the sense that it was not supported by the evidence and that the Crown did not exclude the reasonable possibility that another person was responsible for the attack, particularly Lyndon and/or the third person whose DNA was identified on the nunchucks.

10. [10]

    In the event that his appeal against conviction is unsuccessful, the Applicant also sought leave to appeal against his sentence on the basis of manifest excess.

Ground 1

1. [11]

   By ground 1 of the appeal, the Applicant argued that the trial judge erred in failing to warn the jury, pursuant to s 165 of the Evidence Act, that the evidence of Lyndon may be unreliable.

2. [12]

   Relevantly, s 165 provides:

3. [13]

   The very short submission made by defence counsel prior to the summing up in support of such a warning being issued is revealed in the following exchange with the trial judge:

4. [14]

   On 19 July 2022, the trial judge gave the following judgment in respect of the application for a s 165 warning to be given to the jury in relation to the evidence of Lyndon:

5. [15]

   Ms Kluss, who appeared for the Applicant, accepted that she would need to demonstrate that not only did the trial judge err in not giving the s 165 direction but that his failure to do so resulted in a miscarriage of justice.

6. [16]

   In our view, the trial judge did not err in declining to give the s 165 direction and, even if this were not so, no miscarriage of justice resulted.

7. [17]

   Before turning to consider his Honour’s direction, it is first appropriate to review some of the leading authorities concerning s 165 of the Evidence Act.

8. [18]

   The purpose of s 165 of the Evidence Act was articulated by Kirby J in R v Baartman [2000] NSWCCA 298 at [62]:

9. [19]

   In Stewart v R (2001) 52 NSWLR 301; [2001] NSWCCA 260 (Stewart), Howie J said the following as to the scope of s 165 of the Evidence Act:

10. [20]

    Howie J went on to say the following as to the scope of s 165(1)(d) of the Evidence Act against the background of the pre-existing common law position which provided for “accomplice warnings”:

11. [21]

    In Stewart at [16], Spigelman CJ said the following:

12. [22]

    In R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506, the Court considered whether the evidence of a witness to whom an accused person had confessed, but who concealed that confession for a period of time, was evidence given by a witness “criminally concerned in the events giving rise to the proceeding” and of an unreliable kind within the meaning of s 165(1)(d) of the Evidence Act. Heydon JA (with whom Dowd and Bell JJ agreed) reasoned as follows:

13. [23]

    In Blair, the Court considered whether the evidence of a complainant who had an involvement in drug supply and/or general criminal activity fell within the scope of s 165(1)(d) of the Evidence Act. Beech-Jones CJ at CL said (at [5]):

14. [24]

    In our view, it was open to the trial judge to form the view that Lyndon could not have reasonably been supposed to have been criminally concerned in the events giving rise to the proceedings based upon all the evidence in the case, including:

15. [25]

    The jury did not need to be warned that Lyndon was the Applicant’s brother and lived in the same house as that in which the nunchucks and the victim’s phone were found. That was common ground and an unremarkable fact. There was nothing specially in the Court’s knowledge that called for a warning to the jury as to the nature of Lyndon’s evidence nor was there a danger of the jury overestimating the weight of Lyndon’s evidence.

16. [26]

    The Crown submitted, and we accept, that the fact that the Applicant’s trial counsel had suggested that Lyndon was the perpetrator of the offence did not bring him within the category of person described by s 165(1)(d) of the Evidence Act. The Applicant’s reliance upon the fleeting observations of Ms Dowdell and Mr Hackworthy from their car as it drove along Anne Street of a man with short hair approaching and/or attempting to enter a white car on the Property were also insufficient to establish that Lyndon might reasonably be supposed to have been criminally concerned in the events, when viewed in the context of all of the evidence that had been received by the time application was made for a s 165 direction.

17. [27]

    As to Lyndon’s evidence that he heard a voice from his bed which sounded like that of the Applicant, Lyndon’s evidence was not of a kind that carried dangers warranting a warning and/or made it potentially unreliable: in fact, his evidence sought to diminish the possibility that the voice he heard was that of his brother, the Applicant. He said under cross examination:

18. [28]

    There was no error in the trial judge’s decision not to give a s 165 warning and, even if such a warning should have been given, there was no miscarriage of justice. Lyndon’s evidence was of limited significance. As submitted by the Crown:

19. [29]

    The same powerful body of circumstantial evidence provides an answer to ground 2 of the appeal which was expressed in terms that the conviction was “unsafe and unsatisfactory and not supported by the evidence.” It is to that ground that we now turn.

Ground 2

1. [30]

   The entirety of the Applicant’s written submissions under ground 2 were as follows:

2. [31]

   A submission of this kind is wholly unsatisfactory. Apart from the passing reference to the trace of a third party’s DNA on the nunchucks, this “submission” was bereft of any argument at all, and that position was scarcely advanced in oral submissions. If counsel wish to contend that a jury verdict is unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), the Court expects that counsel will be in a position meaningfully to assist the Court and not simply submit, as was done in the present case in response to a question as to what was relied upon in support of the ground, “The Court has to make its own independent assessment of the evidence.” Counsel should not settle a Notice of Appeal including such a ground unless they themselves have given conscientious attention to whether or not such an argument can responsibly be made, and articulated arguments as to why a verdict was unreasonable in the sense of not being open to the jury.

3. [32]

   The principles applicable in respect of unreasonable verdict appeals were summarised in Quinn v R [2023] NSWCCA 229 at [82]-[86]:

4. [33]

   Key features of the evidence in the present case were as follows:

5. [34]

   Following our careful and independent review of the whole of the evidence, and considering all these circumstances together, it was, in our opinion, well open to the jury to be satisfied beyond reasonable doubt that the Applicant was guilty, and there was no reasonable possibility that anyone other than the Applicant could have been responsible for the attack on the victim: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25.

6. [35]

   It follows that, if leave to appeal were granted, ground 2 of the appeal would be rejected. Given the lack of a sufficient basis to support ground 2, the appropriate course is to refuse leave to appeal in respect of ground 2.

The sentence appeal

1. [36]

   The Applicant also sought leave to appeal against the sentence imposed by the sentencing judge of 9 years’ imprisonment, commencing on 27 April 2021 and expiring on 26 April 2030, with a non-parole period of 6 and a half years expiring on 26 October 2027. The only ground of appeal relied upon was that the sentence was manifestly excessive.

2. [37]

   There was no dispute before the sentencing judge that a sentence of imprisonment to be served by way of full-time custody was the appropriate outcome: at ROS 17.

3. [38]

   As to the objective gravity of the offending, the sentencing judge held (at ROS 5-6) that the victim’s injuries were “life-threatening” but that the “extent of injuries sustained by the victim is of great significance … but not solely determinative.” His Honour went on to consider that the offending involved “a sustained attack … when armed with an objectively serious weapon on an unarmed man who was going about his own business”, the use of metal nunchucks to the head and body of the victim, “no evidence of any planning or pre-meditation” and “one continuous course of attack in one burst of offending for a short period of time, although during that short period of time, it was sustained.” The sentencing judge also took into account, as elevating the objective seriousness of the offending, the fact that the Applicant “pretty well immediately departed from the scene” in circumstances where the “victim must have been, as a result of his attack, clearly, and obviously to him, seriously injured.” His Honour additionally noted the “profound” effect of the offending on the victim who has ongoing physical and psychological injuries that have impaired his ability to care for himself and obtain meaningful employment: at ROS 7.

4. [39]

   The sentencing judge ultimately found that the offence was “a very objectively serious example of such an offence”, “in the upper end of the mid-range of objective offending” and “a very serious example of such offending”: at ROS 7.

5. [40]

   His Honour next considered relevant statutory aggravating features. The sentencing judge took into account the fact that the Applicant was on a community corrections order at the time of the offending. However, his Honour did not “double count” the Applicant’s use of a weapon as a statutory aggravating factor, nor did he find that the offence involved the infliction of “gratuitous cruelty”. The sentencing judge found that, “to a limited extent”, the fact that the victim was left on a “relatively busy road” was an aggravating factor: at ROS 7-8.

6. [41]

   At ROS 8, the sentencing judge noted that the Applicant had denied the offending and was thus disentitled to any “discount for remorse”.

7. [42]

   As to the Applicant’s subjective circumstances, it was held that “to the extent general deterrence may play a slightly lesser role, protection of the community does need an elevated role in this sentencing exercise”: at ROS 15.

8. [43]

   At ROS 13-14, the sentencing judge reasoned as follows in respect of the Applicant’s mental health conditions:

9. [44]

   His Honour was unable to find whether the offending was committed under the influence of drugs. Although the sentencing judge accepted that this would help explain “an otherwise inexplicable outburst of extremely serious violence directed against an innocent member of the community unknown to him”, his Honour found that this could not be taken into account as a mitigating circumstance: at ROS 14-15.

10. [45]

    The sentencing judge took into account the circumstances of the Applicant’s early life, “particularly the difficulties of his upbringing, his experience of sexual abuse as a child, to the extent that the Court is aware of it, and the circumstances in which he was exposed to the murder of his brother’s girlfriend at Maitland when a young person, all of which would have been traumatic for a young child and would have led to mental health sequela and disruptions of his life”. His Honour also noted “the extended periods of time for which he has been able to live as an apparently pro-social member of the community” (at ROS 15) as well as the Applicant’s “relatively limited criminal history” which was constituted by “relatively minor” offences separated by “many years” all of which were dealt with by fines and community corrections orders: at ROS 8, 10.

11. [46]

    The sentencing judge also took into account the fact that the Applicant had been on remand for a lengthy period of time and was treated as a person of suspicion in custody because of his age as well as his “more onerous … experience in custody as a result of the COVID pandemic”: at ROS 16.

12. [47]

    The sentencing judge then held, with reference to the certificates of courses completed by the Applicant in custody, that the Applicant was “open to receiving treatment for … his complex mental health needs” and that his rehabilitation prospects “while perhaps guarded, are better than they might otherwise have [been] in circumstances where he denies involvement in the offending”: at ROS 17.

13. [48]

    His Honour (at ROS 17) noted “the combination of factors” being that:

14. [49]

    In imposing a sentence of 9 years’ imprisonment with a non-parole period of 6 and 6 months, the sentencing judge noted that “special circumstances have been found, and some allowance has been made to enable a period of two-and-a-half years on supervision”: at ROS 18.

15. [50]

    None of the sentencing judge’s findings or assessments was challenged and it was not submitted that his Honour made any errors of principle in determining the sentence.

16. [51]

    The core of the Applicant’s submissions in relation to manifest excess was that the sentence was “simply too long” especially since it had the potential to be a crushing sentence on a man with complex mental health needs destroying any expectation of a useful life after release. It was also submitted that the following should have moderated the sentence: the Applicant’s age, lack of antecedents and lack of any indicator of his being prone to such violence as was involved in the present case.

17. [52]

    The Crown’s submissions were in effect that the sentence was appropriate given the seriousness of the offending, the absence of anything in the Applicant’s subjective case capable of mitigating the offending itself, which was unexplained, his prospects of rehabilitation which were “perhaps guarded” and the finding that the Applicant’s mental health needs, while taken into consideration, meant that protection of the community was a priority to the extent that the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 were engaged.

18. [53]

    The principles to be applied in respect of a ground of appeal asserting manifest excess were not in dispute in this case and can be stated briefly.

19. [54]

    The assessment of whether an aggregate sentence is manifestly excessive involves consideration of whether it reflects the totality of the criminality involved: Du Plessis v R [2024] NSWCCA 164 at [75] citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].

20. [55]

    To succeed in establishing that a sentence is manifestly excessive, an applicant must establish that the sentence was unreasonable or plainly unjust, in a context where there is no single correct sentence and sentencing is not a precise mathematical exercise: DL v R [2020] NSWCCA 164 at [107] and the authorities there cited. Indeed, intervention on this ground is only warranted where the sentence imposed is so far outside the range of sentences available that it can be concluded there must have been error: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [76].

21. [56]

    The maximum penalty applicable in respect of the offence for which the Applicant was sentenced provides a yardstick, when balanced with all other relevant factors, in light of which the appropriate sentence is to be determined: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [31]. Commonly the maximum penalty invites comparison between the case with which a court is dealing and cases falling within the category of the “worst case”: Markarian at [31].

22. [57]

    The standard non-parole period relevantly “represents the non-parole period for an offence … that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”: s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

23. [58]

    While careful attention is almost always required to be given to the maximum penalty, it must also be accepted that, as was held in Elias v R; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]:

24. [59]

    In the present case, the Applicant was sentenced for an offence which carries a maximum penalty of imprisonment for 25 years with a standard non-parole period of 7 years and which was found to be “in the upper end of the mid-range of objective offending” and “a very serious example of such offending”. There were statutory aggravating factors but the sentencing judge was careful not to engage in double counting in that regard. The Applicant was found not to be entitled to leniency because of his albeit limited criminal history, nor was he entitled to any “discount” based on remorse. As to the Applicant’s background, although he had been exposed to alcohol abuse, domestic violence and sexual abuse in earlier years he had managed for a considerable period to lead a pro-social life. The material in relation to his mental health was noted to involve some inconsistency, especially in relation to illicit drug use and its consequences. No causal link could be drawn between his mental health disability and the offending and it was found appropriate to have greater regard to the protection of the community from future offending by the Applicant in all the circumstances. Taking into account those factors and all the other relevant findings of the sentencing judge, and the applicable purposes of, and principles in relation to, sentencing, the sentence imposed of 9 years’ imprisonment with a non-parole period of 6 years and 6 months did not bespeak error. Furthermore, in the circumstances, such a sentence was not unreasonable or plainly unjust.

25. [60]

    While the sentence imposed was towards the sterner end of the range of available sentences, it was not so long as to constitute a crushing sentence when regard is had to the offence committed by the Applicant, the maximum penalty and all objective and subjective factors which should be appropriately brought into account on sentence: Jackson v R [2020] NSWCCA 230 at [6].

26. [61]

    Given the lack of a sufficient basis for challenging the sentence, leave to appeal in that regard should be refused.

Orders

1. [62]

   In light of the reasons and conclusions above, the Court orders:

   1. (1)

      Grant leave to appeal in respect of ground 1 of the draft Notice of Appeal.

   2. (2)

      Dismiss the Applicant’s appeal on ground 1.

   3. (3)

      Otherwise, refuse leave to appeal.