Cao v R; McGregor-Macdonald v R

1. [1]

   HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.

2. [2]

   DAVIES J: I agree with Adamson J.

3. [3]

   ADAMSON J: The applications of Richard Cao and Dylan McGregor-Macdonald (the applicants) for leave to appeal against their sentences were heard together for convenience. Each applicant alleges that the sentencing judge erroneously sentenced him for the more serious offence of recklessly inflict grievous bodily harm in company, instead of reckless wounding in company, to which each pleaded guilty. Mr Cao raised an additional parity ground. The sentences for each applicant were imposed on the same day, 12 February 2020, by the same judge, Buscombe DCJ. The applicants were co-offenders. It is convenient for the reasons of this Court to be expressed in a single judgment, although the applications for leave to appeal and appeals are distinct.

4. [4]

   Each of the applicants was charged on indictment with the following two counts: first, assault occasioning actual bodily harm in company of David Keogh; and, second, reckless wounding in company of Nick Wong. The offence in the first count carried a maximum penalty of 7 years’ imprisonment. The offence in the second count carried a maximum penalty of 10 years’ imprisonment with a standard non-parole period (SNPP) of 4 years’ imprisonment. Mr McGregor-Macdonald asked for the offence of common assault of Scott Smith to be taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for his sentence on count 1.

5. [5]

   Each of the applicants pleaded guilty and each received a discount of 25% pursuant to s 22 of the Crimes (Sentencing Procedure) Act.

6. [6]

   Mr Cao was sentenced to an aggregate sentence of 4 years’ imprisonment commencing on 20 January 2020 and expiring on 19 January 2024 with a non-parole period of 2 years commencing on 20 January 2020 and expiring on 19 January 2022. The indicative sentence for count 2 was 3 years’ imprisonment with a non-parole period of 18 months and the indicative sentence for count 1 was 2 years’ imprisonment.

7. [7]

   Mr McGregor-Macdonald was sentenced to an aggregate sentence of 4 years and 4 months’ imprisonment commencing on 4 February 2020 and expiring on 3 June 2024 with a non-parole period of 2 years and 2 months’ imprisonment commencing on 4 February 2020 and expiring on 3 April 2022. The indicative sentence for count 1 (taking into account the offence on the Form 1) was 2 years and 4 months’ imprisonment and for count 2 was three years’ imprisonment, with a non-parole period of 18 months.

8. [8]

   The proceedings on sentence in respect of both applicants were heard by Buscombe DCJ on 12 February 2020. The parties tendered documents and made submissions. Neither applicant nor any other person gave oral evidence. The sentencing judgment was delivered ex tempore at the conclusion of the sentence proceedings that day.

9. [9]

   At the commencement of the reasons, his Honour correctly stated the offences to which each applicant had pleaded guilty, the respective maximum penalties and the further offence on the Form 1 which was to be taken into account in respect of Mr McGregor-Macdonald.

10. [10]

    His Honour summarised the facts that had been agreed, from which the following narrative is also based.

11. [11]

    At 12.30am on 1 January 2019, Scott Smith was at the Parramatta Bus Interchange, sitting on a fixed seat in a row, waiting for a bus. Shortly after he sat down, David Keogh, whom he knew, joined him and they began to converse. At about 12.44am the applicants arrived at the interchange. Mr McGregor-Macdonald noticed Mr Keogh’s watch and walked up to him, grabbed the watch and said, “Mad watch, man.” Mr Keogh felt uncomfortable because of Mr McGregor-Macdonald’s proximity and took a step back. Suddenly, Mr Cao punched Mr Keogh with a closed fist on his left jaw. Mr Keogh put his head downwards to protect himself and tried to get away. Mr Smith stood up but before he could do anything, Mr McGregor-Macdonald ran towards him and jumped into the air and hit him with a closed fist.

12. [12]

    Mr Keogh walked away but tripped and fell to the ground towards the road divider. The applicants kicked him at least ten times and punched him on the face and body. One of the kicks struck Mr Keogh on the jaw and broke his teeth-plate. Mr Smith approached Mr Keogh to help him but Mr McGregor-Macdonald asked him if he wanted to be stabbed and put his hand down his trousers. Mr Smith stepped back, fearing that Mr McGregor-Macdonald might have a knife.

13. [13]

    Nick Wong, a bystander, intervened and asked the applicants what they were doing. Mr McGregor-Macdonald said that Mr Keogh had started it. Mr Wong said that he did not care who started it and that he would call the police. As soon as Mr Wong took his phone out of his pocket, Mr McGregor-Macdonald pushed him to the ground and used his knee to hit him twice in the eye and knocked his glasses off. Mr McGregor-Macdonald punched him at least six times on the jaw. Mr Keogh got up. He had a lot of blood on his face, forehead and eyes. The applicants tried to punch him but missed. Mr Keogh punched Mr McGregor-Macdonald who fell to the ground.

14. [14]

    As the applicants were walking towards a nearby restaurant, the police arrived. Mr Wong was still lying on the ground nearby, surrounded by a group of concerned people. When questioned by the police, he was able to identify the applicants as having attacked him.

15. [15]

    The applicants were arrested and searched. After they had recovered from their intoxicated state, they were entered into custody. In a recorded interview, Mr Cao said that he did not remember anything as he had taken five Xanax tablets and some alcohol. Mr McGregor-Macdonald was also interviewed and admitted that he had been intoxicated by alcohol and prescription medication.

16. [16]

    Mr Keogh’s right calf was swollen; he was tender on the right fibula and suffered pain in the right calf and ankle. He was found to have sustained an undisplaced fracture in the head and neck of his right fibula. There were several lacerations. He was admitted to the Emergency Short Stay Unit overnight and was discharged the following day. His denture plate was broken. Mr Smith suffered a sore cheek and a headache. Mr Wong suffered a fracture of the medial wall of the orbit which his Honour noted was “described by the doctor as representing a serious injury”, in addition to nausea, visual blurriness, dizziness and headaches. He suffered multiple facial injuries.

17. [17]

    When determining the objective seriousness of count 1, his Honour described the offence as “a completely unprovoked, violent attack upon a man who had simply been waiting at a bus-stop”. His Honour noted that Mr Cao threw the first punch at Mr Keogh but that, thereafter, both applicants had participated in the attack. His Honour considered that kicking the face of a victim who is on the ground, which he described as a “very cowardly act”, increased the level of seriousness. The sentencing judge assessed the objective seriousness of count 1 as being “within the mid-range level of objective seriousness”. As to parity, his Honour noted that Mr Cao instigated the violence and “can be seen in that regard to be more involved in that offence than Mr McGregor-Macdonald.”

18. [18]

    When his Honour addressed the offence of reckless wounding in company, he repeated the treating doctor’s description of the fracture of the medial wall of Mr Wong’s orbit as “a serious injury” and observed that Mr Wong’s injuries were “clearly significant”. His Honour assessed the objective seriousness of the reckless wounding offence as just below the mid-range of objective seriousness.

19. [19]

    On the question of parity, his Honour said:

20. [20]

    His Honour addressed the effect of the assault on Mr Smith, for which Mr McGregor-Macdonald was responsible, which was on the Form 1, and noted that it had an impact on the sentence to be imposed on Mr McGregor-Macdonald for count 1.

21. [21]

    His Honour set out the respective subjective circumstances of each applicant. Mr Cao was 19 at the time of the offending, had a very limited criminal history, which did not disentitle him to “some leniency” in his sentence. The sentencing judge noted that he was of Vietnamese background, born in Sydney and raised in the Liverpool area. His Honour noted that Mr Cao had a supportive family and a good work history. Mr Cao’s parents separated when he was 18 years old due to his father’s infidelity, which “came as a shock to all the family”. His Honour noted that Mr Cao had not given evidence at the sentence proceedings but that, according to a psychologist’s report, he displayed some insight into the causes of his offending and the role of substance abuse. The sentencing judge found that Mr Cao was “genuinely remorseful” and had good prospects of rehabilitation. His Honour found special circumstances on the basis of his age and prospects of rehabilitation.

22. [22]

    Mr McGregor-Macdonald was 18 at the time of the offending. He noted that the only other offence on his record was committed on the same date as the subject offending. He became subject to an 18-month community corrections order as a consequence of that offence and performed appropriately in the context of that order. His Honour found that his record did not disentitle him to some leniency. His Honour noted that Mr McGregor-Macdonald was a young indigenous male who was born in Sydney. His parents separated when he was 7 and he has had little contact with his father since. His mother and other close relatives continue to support him. His Honour noted that he left school after completing Year 10 to study carpentry. He had ceased work at about the time of the offences because of family issues and substance abuse. However, he had a positive testimonial regarding his work. He had difficulties with substance abuse, which increased after the death of his grandfather. His Honour noted the psychologist’s opinion that he met the threshold for anxiolytic use disorder but that this was currently in remission.

23. [23]

    His Honour considered that Mr McGregor-Macdonald was “genuinely remorseful for his behaviour”.

24. [24]

    In summary, his Honour found:

25. [25]

    His Honour made a finding of special circumstances in relation to Mr McGregor-Macdonald.

26. [26]

    After having consistently referred, correctly, to the offence in count 2 as being “reckless wounding”, his Honour, at page 15 of the remarks shortly before imposing the sentences, changed the wording, as is evident from the following extracts from the judgment:

27. [27]

    It is convenient to deal with the ground raised by both applicants: that the sentencing judge misstated the offence in count 2 and that therefore the applicants had been sentenced for a more serious offence than the one of which each had been charged and to which each had pleaded guilty. These two grounds raise two discrete matters: the error highlighted in the extract from the remarks on sentence set out above; and the ambiguity surrounding the injury or injuries which constituted the wounding, and the basis on which other injuries were taken into account. These will be addressed in turn.

28. [28]

    His Honour’s error was to describe the offence as being recklessly inflict grievous bodily harm in company (an offence contrary to s 35(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years’ imprisonment), rather than reckless wounding in company (an offence contrary to s 35(3) of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment). However, this error occurred only towards the end of the remarks on sentence. At every other point in the remarks up until that time, the sentencing judge correctly referred to the offence for count 2 as being reckless wounding in company and correctly stated the maximum penalty as being 10 years’ imprisonment.

29. [29]

    It is a matter of common experience that, when delivering ex tempore reasons, slips in expression can occur. Such slips do not necessarily reveal errors of substance or comprehension, but may simply reveal the effects of fatigue caused by the effort of marshalling one’s thoughts and the relevant facts and expressing one’s findings and conclusions in a cogent and comprehensive fashion.

30. [30]

    It is of significance that there was no finding that Mr Wong had suffered grievous bodily harm (which relevantly includes any permanent or serious disfiguring of the person: s 4(1) of the Crimes Act), which would have been necessary had the charge been reckless grievous bodily harm in company (under s 35(1) of the Crimes Act). It is important to read the sentencing remarks as a whole and not to focus on a particular aspect which, taken in isolation, is erroneous. I am satisfied that, having regard to the whole of the remarks, his Honour appreciated that the offence in count 2 in respect of each applicant was the offence of reckless wounding in company (under s 35(3) of the Crimes Act) for which the maximum penalty was 10 years’ imprisonment. The three mistaken references to the incorrect offence highlighted in the passage above were mere slips and did not alter the correct substance of the judgment.

31. [31]

    Wounding requires some breaking or cutting of the interior layer of the skin. Neither applicant had been charged with an offence which required proof of grievous bodily harm. The agreed facts contained the following passages which were relevant to the injuries suffered by Mr Wong:

32. [32]

    No distinction was drawn by the parties at the sentencing hearing between those of Mr Wong’s several injuries which amounted to wounding; those which were related to the injuries which constituted wounding; and those which were discrete injuries unrelated to the wounding. Nor did his Honour make any such distinction in the reasons for judgment. Mr Wong’s injuries plainly involved some breaking of the skin, which led to bleeding. The Crown can be taken to have accepted that the injuries sustained by Mr Wong did not amount to grievous bodily harm, since it charged and accepted a plea to reckless wounding in company. His Honour did not find that Mr Wong’s injuries amounted to grievous bodily harm.

33. [33]

    On appeal, Ms Goodwin, who appeared for Mr Cao, and Mr Kent, who appeared for Mr McGregor-Macdonald submitted that, notwithstanding the inclusion of the orbital fracture in the agreed facts, his Honour was not entitled to take into account injuries inflicted on Mr Wong that were neither wounds nor injuries which were more serious than the wounds. They relied on the decision of this Court in McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 (McCullough). In addition, Mr Kent relied on the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) that a court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence. He submitted that, in effect, the sentencing judge took into account that Mr Wong had suffered grievous bodily harm, when the pleas by the applicant were to an offence against s 35(3) and not s 35(1) and that he had been punished for a more serious offence than that to which he pleaded guilty.

34. [34]

    Before turning to the relevant authorities, it is useful to note that the version of s 35 of the Crimes Act which provided for malicious wounding in McCullough was, relevantly, as follows:

35. [35]

    In McCullough, the applicant pleaded guilty to malicious wounding of his 60-year-old mother contrary to s 35(1)(a) of the Crimes Act. The applicant, who was intoxicated following his attendance at a wake, grabbed his mother and punched her a number of times to the face and body. He held her in a headlock and continued to punch her. In an attempt to extricate herself, she bit his finger. He pushed her into the bath and continued to rain blows on her and kicked her. At one point he bit her left finger and shouted, “How do you like that?” He then punched and kicked her again. Someone came to the door, which gave her the opportunity to try to get out of the bath. The applicant braced himself against the wall which caused her head to hit the wall with such force that it broke through the tiled wall. He repeated this action, again forcing her head to hit the wall. He then turned on the bath tap causing hot water to splash her. The attack continued until interrupted by a neighbour. The applicant’s mother suffered several injuries: a wound to her left index finger where the applicant bit her, a fracture of her right wrist, bruising and swelling to both eyes, lacerations to her face and pain to the right side of her rib cage. She was required to spend five days in hospital. Her finger was stitched and her wrist placed in a cast.

36. [36]

    McCullough was unrepresented at the application in this Court although he was represented at the sentence hearing. The Court (Howie J, McClellan CJ at CL and Simpson J agreeing) found that the sentencing judge was not entitled to take into account the fractured wrist because it did not amount to wounding and was more serious than the wounding. Howie J said, of present relevance:

37. [37]

    These remarks were obiter as the challenge to the sentence succeeded on the ground of manifest excess, as appears from [42], where his Honour said:

38. [38]

    A different, but related, question arose in Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38, which concerned offences against s 33 of the Crimes Act, which in the relevant form at the time of the offending provided that:

39. [39]

    It can be seen from a comparison between s 33 (in Bourke) and s 35 (in McCullough) that s 33 was regarded as a much more serious offence by reason of the relevant intent. It was argued on behalf of Bourke that the sentencing judge had erred by taking into account, on a plea to malicious wounding with intent to do grievous bodily harm, injuries which amounted to grievous bodily harm, because he had been charged with malicious wounding and not malicious infliction of grievous bodily harm. This Court dismissed the appeal on the basis that it was undoubtedly appropriate for the sentencing judge to take into account other injuries which were included in the agreed facts and which were related to the wounding, although such injuries constituted grievous bodily harm: McClellan CJ at CL at [53]-[54] (Price and R A Hulme JJ agreeing). Their Honours distinguished McCullough on the basis that the injuries in that case that constituted grievous bodily harm (the fractured wrist) were unrelated to the injuries which constituted the wounding. They also distinguished it on the basis that the applicant in McCullough was charged with malicious wounding simpliciter which disentitled the sentencing judge from taking into account injuries which did not amount to wounding but which did amount to grievous bodily harm.

40. [40]

    In Kingsley v R [2019] NSWCCA 19 (Kingsley), the applicant was sentenced following a plea to reckless wounding in company contrary to s 35(3) of the Crimes Act, which was in the same form as applied to the applicants in the present case. Section 35 provides in part:

41. [41]

    Because s 35 provides for four offences of differing seriousness depending on whether the offence was committed in company or not and whether the harm amounted to grievous bodily harm or wounding, the principle in De Simoni is particularly relevant.

42. [42]

    The agreed facts in Kingsley made reference to the injuries sustained by the victim, which included fractures. The applicant alleged that the sentencing judge had erroneously taken into account fractures in a plea to wounding. This Court dismissed the appeal. McCallum J (Leeming JA and Bellew J agreeing) said, of present relevance:

43. [43]

    In the present case, it was common ground that the fracture to the medial wall of Mr Wong’s orbit was referred to in the agreed facts. It was also common ground that no submission was made that this injury ought to be disregarded. There was no suggestion by the Crown that any of the injuries amounted to grievous bodily harm. Indeed, its acceptance of the plea established the contrary. In these circumstances, I reject the submission that the sentencing judge breached the principle in De Simoni.

44. [44]

    The applicants submitted that there was no evidence that the orbital fracture involved a wound and that, in accordance with McCullough, the sentencing judge ought not to have taken it into account.

45. [45]

    This Court is generally loath to entertain points on appeal which could and should have been put to the court at first instance: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL agreeing). An appeal is not an opportunity to reformulate arguments based on what emerges in remarks on sentence. This is particularly so in circumstances where neither of the applicant’s counsel saw fit in the court below to make the point presently taken and both acceded to the inclusion of facts relating to the fracture, now said to be irrelevant, in the agreed facts which were tendered on sentence.

46. [46]

    The agreed facts included that Mr Wong had blood on his face and around his eyes. In these circumstances I consider that his Honour was entitled to take the fracture into account as being associated with the wounding and indicative of the force of the punches delivered to his face which resulted in both the wounding and the fracture. As I have said above, although his Honour considered the fracture to be significant, his Honour did not find that it amounted to grievous bodily harm. I am not persuaded that his Honour took into account the fracture in an impermissible way.

47. [47]

    For these reasons, neither Mr Cao’s ground 2 nor Mr McGregor-Macdonald’s sole ground has been made out.

48. [48]

    Mr Cao submitted that there was a disparity between his aggregate sentence and the aggregate sentence imposed on Mr McGregor-Macdonald which was revealed by a comparison in the sentences which his Honour indicated would have been imposed for count 2 in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act.

49. [49]

    In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, the majority (French CJ, Crennan and Kiefel JJ) said at [31]:

50. [50]

    The question for this Court is whether the differences (or similarities) between the respective sentences are justified either by subjective circumstances or by the role played by each applicant in the relevant criminal conduct.

51. [51]

    A comparison between the sentences indicated for count 1 is capable of being construed as reflecting his Honour’s assessment that the applicants’ subjective circumstances were substantially similar (young offender, entitled to leniency, relatively supportive family, good work record, issues with substance abuse, genuinely remorseful and with good prospects of rehabilitation). The difference between the sentences indicated for count 1 would appear to be justified by the circumstances that, although Mr Cao threw the first punch at Mr Keogh, both were involved in the assault; and that Mr McGregor-Macdonald had an additional offence on the Form 1 to be taken into account.

52. [52]

    The justification for identical sentences to be indicated for count 2 is much less obvious in circumstances where his Honour could not be satisfied that Mr Cao made contact with Mr Wong at all. Thus, in terms of relative culpability, Mr McGregor-Macdonald’s responsibility was significantly greater, as his Honour found, for count 2 than was Mr Cao’s. The same indicative sentence might be warranted notwithstanding the different roles played by each applicant in count 2, if there was something in their subjective circumstances to justify it. However, the relative similarity in the indicative sentences for count 1 tells against such a conclusion.

53. [53]

    I am persuaded that Mr Cao has made out the parity ground because there is an objectively justifiable sense of grievance with respect to the aggregate sentence imposed on him which is revealed by the indicative sentence for count 2. Although he stood ready and able to assist Mr McGregor-Macdonald in the reckless wounding of Mr Wong, his role was substantially less and ought to have been reflected in a lower indicative sentence for count 2 and lower aggregate sentence for counts 1 and 2.

54. [54]

    In my view, the disparity ought be corrected by reducing the aggregate sentence imposed on Mr Cao by ten months on the basis of an indicative sentence for count 2 of 2 years’ imprisonment with a one year non-parole period. Thus the aggregate sentence would be 3 years and 2 months’ imprisonment with a non-parole period of 19 months.

Proposed orders

1. [55]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed in the District Court on 12 February 2020 and, in lieu thereof, impose an aggregate sentence of 3 years and 2 months’ imprisonment commencing on 20 January 2020 and expiring on 19 March 2023 with a non-parole period of 19 months’ imprisonment commencing on 20 January 2020 and expiring on 19 August 2021.

   4. (1)

      Grant leave to appeal.

   5. (2)

      Dismiss the appeal.