Brown v R

1. [1]

   HOEBEN CJ AT CL: I agree with Harrison J.

2. [2]

   HARRISON J: Matthew Brown seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the aggregate sentence imposed upon him by Marien A-DCJ in the District Court at Griffith on 9 August 2019. Mr Brown had earlier pleaded guilty to the following offences:

3. [3]

   His Honour sentenced Mr Brown to an aggregate sentence of imprisonment for 7 years and 3 months with a non-parole period of 4 years and 10 months commencing on 20 September 2018. His Honour noted indicative sentences of 6 years and 3 months with a non-parole period of 4 years for Count 1 and 3 years for Count 2.

4. [4]

   Mr Brown relies upon two grounds of appeal as follows:

Facts

1. [5]

   The victims Mr Green and Ms Standford were in a domestic relationship. Ms Standford was the manager of the Town Centre Motel in Leeton which offered emergency accommodation to clients of the Department of Housing. Mr Green assisted her from time to time.

2. [6]

   On 8 March 2017, Mr Brown together with his then partner and co-offender, Tara Kilby, and two children, sought emergency accommodation at the motel. The motel room provided to them was the only one available. It did not have a functioning air conditioner.

3. [7]

   On 12 March 2017, between 8.30pm and 9.00pm, Ms Kilby approached Ms Standford aggressively and pushed a bundle of linen into her chest. Ms Standford explained to Ms Kilby that it was Ms Kilby’s responsibility to service her motel room. Ms Kilby swung her fist at Ms Standford’s face but Ms Standford avoided the punch. She told Ms Kilby to collect her belongings and leave the motel. Ms Kilby and Mr Brown were subsequently observed removing their belongings from the motel room, placing them into a car and leaving the premises.

4. [8]

   The following morning at about 3.20am, Ms Standford was woken by banging on her front bedroom window. She went outside and confronted two males and a female. She called out to Mr Green saying, “They are back”. The two males and female began assaulting Ms Standford. They punched and kicked her and she fell to the ground. As she was being assaulted, Ms Standford saw Ms Kilby running towards her. Ms Kilby kicked her while she was on the ground. It was common ground that Mr Brown played no part in the assault on Ms Standford. His liability for the actions of the direct participants to that assault was on the basis of joint criminal enterprise.

5. [9]

   As Ms Standford was being assaulted, Mr Green came outside. He tried to intervene and the two males assaulting Ms Standford began punching him. Ms Kilby and the other female continued assaulting Ms Standford while she was on the ground.

6. [10]

   Mr Brown ran to assist the two males who were punching Mr Green. The agreed facts describe his involvement in the following terms:

7. [11]

   A short time after this, all five people involved in the offences left the motel. A pair of scissors and a baseball cap were left behind. A DNA profile consistent with Mr Brown was found on both items.

8. [12]

   Ms Standford was taken to Leeton Hospital with injuries to her face and body including bleeding and bruising. Mr Green was taken to Wagga Rural Referral Hospital. His wounds were expected to heal within one month.

9. [13]

   Later that day at about 4.40pm, Ms Kilby and Mr Brown were arrested.

Mr Brown’s personal circumstances

1. [14]

   At the time of the offences, Mr Brown was approximately 33 years of age. He had previous convictions for damaging property, break and enter, receiving, larceny and custody of a knife. In 2008 he was convicted of stalk/intimidate and contravene an apprehended violence order and was sentenced to community service and a good behaviour bond. In 2009 he was convicted of assault and sentenced to imprisonment for 9 months with a non-parole period of 2 months.

2. [15]

   Following the offences, Mr Brown was admitted to custody and remained there until he was released to bail on 20 July 2017. While at liberty on bail he absconded, and was ultimately re-admitted to custody on 27 January 2019 where he remained until his sentencing.

3. [16]

   Born and raised in Leeton, Mr Brown was three years old when his father died in a motor vehicle accident. When he was seven his mother re-partnered. Mr Brown’s childhood was stable, he was well cared for and was raised together with his sister and half-brother. However, as an adolescent, Mr Brown became increasingly uncontrollable. When he was 12, he began using cannabis, gradually increasing his use until it was “heavy” and “daily”. From the age of 13 he began also to use methylamphetamine which escalated over time. He reportedly began engaging in criminal activity to support his drug use. His friends were anti-social.

4. [17]

   At 15, he left home and effectively became homeless. He distanced himself from his family. At about the same time, he was expelled from school for threatening teachers. He did not complete any further education. As an adult he has held various jobs at different times including positions in farming and labouring but has also endured periods of unemployment.

5. [18]

   As a young adult, Mr Brown continued to use drugs and also abuse alcohol. However in 2009, at the age of 25, Mr Brown engaged for six months in residential drug and alcohol treatment at the Canberra Recovery Service. The treatment had a positive impact on Mr Brown and he successfully maintained abstinence for several years (coinciding with a cessation of recorded criminal offending). During this sustained period of abstinence, he became the primary carer for two of his three children. Both children in his care were under 10 years of age.

6. [19]

   In early 2017, Mr Brown relapsed and again began consuming methylamphetamine. Several things had occurred in his personal life which left him vulnerable to relapse, including loss of employment, loss of housing and conflict in his relationship. He relinquished the care of his two young children. He used methylamphetamine together with Ms Kilby up until his remand into custody for the offences. When he was released to bail in July 2017, he absconded and again relapsed into drug use.

7. [20]

   Mr Brown reported to psychologist Patrick Sheehan that he had previously been diagnosed with depression and bi-polar disorder. He reported a history of symptoms of low mood and mania. He told Mr Sheehan that he had tried various medications over the past decade including several antidepressants, lithium and anti-psychotics. In the weeks before the commission of the offences, he said he had stopped his medications and was consuming only methylamphetamine. He did not recommence any medication until his second admission to custody in January 2019. He said that his mental health during the intervening period had been “very unstable”. Mr Sheehan was of the opinion that Mr Brown met the criteria for substance use disorder and suggested this had contributed substantially to his poor adjustment and criminality (both past and present).

8. [21]

   Since returning to custody in January 2019, Mr Brown has been in regular contact with his family and reported a much improved relationship with his step-father in particular. He planned to live with his family in Leeton when released. He denied any relapse into substance use in custody. He held a position within his gaol as a sweeper and expressed interest in undertaking further drug and alcohol rehabilitation. Mr Sheehan quoted Mr Brown as stating, “I’ll do whatever it takes. I want to bring my family and my children back into my life”. He had re-commenced medication including an anti-psychotic and reported feeling neither depressed nor manic.

9. [22]

   Mr Brown said he had little memory of the offences. He recalled being in a conflict with the victims and being angry but said that the offences were “all a bit of a blur”. He said frankly that Mr Green “could have died” and that no doubt the event would have been traumatic for him. In a handwritten letter to the Court, Mr Brown expressed contrition for his actions and the effect that they may have had on the victims. He wrote a separate handwritten letter to the victims in which he said, amongst other things, “I can’t [express] how sorry and ashamed I am for [what] I’ve done to you … I shouldn’t [have] done what I done [sic]. I can’t say sorry enough. I so hope you can take on board and except [sic] my apology. Not a day goes by I’m not thinking of you …”

10. [23]

    Personal references tendered on sentence indicated that Mr Brown would be supported by his family upon his eventual release from custody.

Ground 1

1. [24]

   The proceedings on sentence took place before his Honour on 6 and 7 August 2019 in the District Court at Griffith. His Honour delivered his remarks and imposed a sentence on 9 August 2019.

2. [25]

   In relation to the objective seriousness of the offences, Mr Brown’s counsel submitted that Count 1 fell “just below the mid-range” and that Count 2 was “well below mid-range”. In reply, the following exchange occurred between the Crown and his Honour:

3. [26]

   In McClelland v R [2019] NSWCCA 59, Fullerton J said this at [17]:

4. [27]

   In McClelland her Honour, in considering this aspect of procedural fairness in sentence proceedings, referred to what the High Court said in DL v The Queen [2018] HCA 32 at [39] and what Basten JA said in Chong v R [2017] NSWCCA 185 at [5]. Her Honour continued at [21]:

5. [28]

   In this case, the Crown submitted below that the objective seriousness of Count 1 fell just below mid-range and that the offending the subject of Count 2 fell slightly below mid-range. Each of these submissions by the Crown was made following submissions made on behalf of Mr Brown, which also put the offending for both counts below the mid-range. In light of those submissions, the parties’ joint assessment of the objective seriousness of Count 1 was not in contest. As far as there was a contest in respect of Count 2, it was limited to the extent to which that offence fell below the mid-range.

6. [29]

   During the sentencing proceedings, his Honour gave no indication that he was minded to take an approach that was contrary to the Crown’s stated position. Mr Brown submitted that this issue was of particular importance in respect of Count 1 because of the application of the standard non-parole period, to which his Honour gave prominence in his remarks. Having not been put on notice of his Honour’s disagreement with the Crown’s assessment, Mr Brown submitted that his counsel was given no opportunity to address the issue further by way of submissions or evidence. The findings that his Honour made as to the objective seriousness of each Count were ultimately contrary to the submissions of the parties: his Honour stated expressly that he did not agree with the submissions put to him by the Crown and Mr Brown’s counsel. Mr Brown submitted that it follows that his Honour’s approach was productive of a procedural unfairness on an issue that was of critical importance to the exercise of the sentencing discretion.

7. [30]

   In Chong at [37]-[39], I said this:

8. [31]

   However, it is clear that a “sentencing judge is not bound to accept the Crown’s assessment of the objective gravity of an offence”: per Hoeben CJ at CL in Stojanovski v R [2013] NSWCCA 334 at [34]. One important aspect of that observation lies in the fact that there will necessarily, or at least usually, be a distinction between a Crown concession on a matter about the adoption of which the judge will have limited input, such as agreed questions of fact, and matters about the ultimate determination of which the judge retains a discretion. A submission by the Crown that a particular offence is of a particular level of objective seriousness could rarely in that sense qualify as a concession binding a sentencing judge unless the judge expressly indicated that he or she proposed to accept it or otherwise gave an intimation to the parties that he or she would act upon it. In those circumstances, a party might be denied procedural fairness, not as the result of the Crown’s “concession”, but as the result of the judge’s express or implied indication that he or she would adopt it.

9. [32]

   I do not consider in this case that the words used by the Crown, that “the Crown agrees with my learned friend’s assessment that it’s below mid-range but not to any great extent”, were on their own or in the context of the proceedings as a whole capable of elevating the Crown’s statement to a concession that no other assessment of objective seriousness was open: see McClelland at [29]. The burden of Mr Brown’s submission is that because the Crown’s assessment of objective seriousness aligned with his own, it was impermissible for the judge for that reason alone to take any course other than to adopt it without giving notice of an intention to do so. However, it could hardly be contended by Mr Brown, if his Honour had said in terms, “Well, I hear what you both say on that topic, but it remains a matter for me to determine”, that Mr Brown’s counsel would have wanted to say more than he had already said or, more particularly, that he would have been denied procedural fairness if he was given no opportunity to do so. The fact that his Honour did not say anything to that effect is only consistent with what both parties must then have understood to be the position, that is, that the assessment of objective seriousness was and remained at all times a matter for his Honour to decide. Mr Brown’s counsel already had made his submission on that issue. A desire to make another or even better submission is not the same as being deprived by judicial silence or other conduct of an opportunity to make any submission.

10. [33]

    Nor am I satisfied in any event that his Honour’s response to the Crown’s submission amounted to an indication that he had accepted the joint position of the parties. It seems clear to me that his Honour did no more than clarify at the sentencing proceedings what each counsel was submitting on the issue of objective seriousness. Nothing either said or left unsaid by his Honour could in my view have given the impression that he had accepted the submissions or that he had foreclosed his discretion to adopt a different assessment.

11. [34]

    I do not consider that Mr Brown was denied procedural fairness. I would reject this ground of appeal.

Ground 2

1. [35]

   Mr Brown made the following submissions.

2. [36]

   First, the aggregate sentence imposed on Mr Brown was one of 7 years and 3 months with a non-parole period of 4 years and 10 months. The indicative sentences were 6 years and 3 months for Count 1, with a non-parole period of 4 years, and a term of 3 years for Count 2. Before applying the discount of 10 per cent for Mr Brown’s pleas of guilty, the starting point of the indicative sentence for Count 1 is approximately 6 years and 11 months and for Count 2 is 3 years and 4 months. Mr Brown submitted that these starting points for each indicative sentence were simply too high. Mr Brown submitted that this is relevant to this Court’s assessment of whether in the result the aggregate sentence is an unreasonable one.

3. [37]

   Secondly, as both the Crown and Mr Brown’s counsel submitted at first instance, the objective seriousness of Count 1 is below mid-range:

4. [38]

   Thirdly, again as both the Crown and Mr Brown’s counsel submitted at first instance, the objective seriousness of Count 2 is below mid-range. However, Mr Brown’s moral culpability for the offence is more important. In KR v R [2012] NSWCCA 32, Latham J provided a useful collection of authorities together with an analysis of the differences between liability and culpability in the context of the criminal law. Her Honour said this at [16]-[22]:

5. [39]

   Mr Brown played no part in the physical assault upon Ms Standford. This feature of Mr Brown’s case on Count 2 was critical in terms of assessing his moral culpability for the offence and the sentence to be imposed. Whilst his Honour was aware of the nature and extent of Mr Brown’s participation in Count 2, this feature of his case is not reflected in the aggregate sentence imposed.

6. [40]

   Fourthly, the combined effect of Mr Brown’s pleas, his remorse, limited criminal history (and the aberrant nature of these offences in that context), the significant gap on his criminal record prior to the commission of these offences, and the strong evidence of improvement in custody and significant community support, all pointed to a less severe sentence than the one imposed at first instance. Whilst his Honour was only guarded about Mr Brown’s prospects of rehabilitation, it could not be said that on the balance of the evidence his prospects were poor. Mr Brown maintained that none of the favourable features of his case was reflected in the aggregate sentence imposed.

7. [41]

   His Honour described the offences, and Mr Brown’s role in committing them, as follows:

8. [42]

   It is apparent, and was accepted by his Honour, that Mr Brown’s offending was, having regard to his criminal history, both uncharacteristic and influenced by drug use. His Honour then dealt with some important and well-understood sentencing considerations in the following remarks:

9. [43]

   Significantly in my view, his Honour had previously referred in commendable detail at pages 6 to 10 of his remarks on sentence to Mr Brown’s subjective case. At the risk of some repetition, it is instructive to include here precisely what his Honour said:

10. [44]

    It is obvious that his Honour was confronted with the exceedingly difficult task of accommodating Mr Brown’s very substantial subjective case with his Honour’s assessment of the objective seriousness of the offences. It should be noted that Mr Brown has not directly challenged his Honour’s view about objective seriousness, presumably upon the uncontroversial basis that it was quintessentially a matter for him to decide.

11. [45]

    Nor does Mr Brown seek to identify particular individual errors in the way in which his Honour’s discretion was exercised. He maintains that the aggregate sentence imposed was in all of the circumstances manifestly excessive and plainly unjust.

12. [46]

    In my view, the sentence at which his Honour arrived is disproportionate to the objective criminality of the events that constitute each count and to Mr Brown’s culpability. An aggregate sentence of over 7 years with a non-parole period of almost 5 years fails properly to take account of Mr Brown’s violent and emotionally impoverished upbringing, his personal circumstances that saw him descend into the abuse of ice, and all of the several compelling matters referred to at [44] to which his Honour referred in commendable detail.

13. [47]

    As Mr Brown has emphasised, he played no active part in the physical assault upon Ms Standford that made up Count 2. Mr Brown clearly accepts that while this cannot diminish his legal liability for that offence in the circumstances, it necessarily reduces his moral culpability in accordance with the principles helpfully analysed by Latham J in KR v R. Without in any way attempting to diminish the severity of this offence, which his Honour described as “particularly brutal”, involving Ms Sandford being punched and kicked causing her to fall to the ground, it should be noted that Ms Sandford’s injuries were fortunately confined to unspecified “multiple injuries to her face and body, causing bleeding and bruising”.

14. [48]

    Count 1 was clearly more serious. Mr Brown was the principal assailant and wielded the weapon that injured Mr Green. Fortunately for both Mr Brown and Mr Green, the injuries sustained by Mr Green were fortuitously quick to resolve with no long term physical effects.

15. [49]

    Questions of accumulation and totality remain matters for consideration in assessing the appropriateness of an aggregate sentence, even though the indicative sentences are not themselves directly the subject of the appeal against such a sentence. I accept Mr Brown’s submission that his Honour’s sentence was in the circumstances of this case unreasonable and plainly unjust. Mr Brown should be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Re-sentence

1. [50]

   For the purposes of this exercise I agree with and adopt all of his Honour’s findings. In that respect I specifically agree that his Honour’s characterisation of the objective seriousness of each count was open to him. However, I consider that a lesser sentence is warranted.

2. [51]

   In my opinion, the following orders should be made:

   1. (1)

      Grant leave to appeal and allow the appeal.

   2. (2)

      Quash the sentence imposed by his Honour Marien SC A-DCJ on 9 August 2019.

   3. (3)

      In lieu thereof, sentence the applicant to an aggregate term of 6 years imprisonment commencing on 20 September 2018 and expiring on 19 September 2024 with a non-parole period of 3 years and 10 months expiring on 19 July 2022.

   4. (4)

      The indicative sentence for Count 1 is 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The indicative sentence for Count 2 is imprisonment for 2 years.

3. [52]

   BEECH-JONES J: I agree with Harrison J.