FEDERAL COURT OF AUSTRALIA McCoy v The Crown [2006] FCAFC 134 CRIMINAL LAW – sentencing – trial judge taking into account material not in evidence on the sentencing hearing – conditional release on recognizance extending beyond head sentence – sentence imposed by Supreme Court of Norfolk Island excessive considering maximum penalty, comparable sentences and plea of guilty – resentencing – conditions of release Criminal Law Act 1960 (Norfolk Island), ss 59, 556B, 556C(5) Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480 cited MARK VINCENT LEOPOLD McCOY v THE CROWN NSD 416 OF 2006 TAMBERLIN, GYLES AND STONE JJ 1 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 416 OF 2006 ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND BETWEEN: MARK VINCENT LEOPOLD McCOY Appellant AND: THE CROWN Respondent JUDGES: TAMBERLIN, GYLES AND STONE JJ DATE OF ORDER: 1 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal against the sentence imposed upon the appellant, Mark Vincent Leopold McCoy, by the Supreme Court of Norfolk Island on 10 February 2006 be upheld. 2. The orders of 10 February 2006 be set aside and in lieu thereof it be ordered that: (1) Mark Vincent Leopold McCoy be sentenced to imprisonment for a term of two years, commencing from 10 February 2006. (2) Mark Vincent Leopold McCoy be released after having served at least 12 months of that said term, upon entering into a recognizance, without sureties, that he will: (a) be of good behaviour for the balance of the period of the said term; and (b) during that said period, reside in New South Wales and accept the supervision and guidance of the New South Wales Probation and Parole Service and obey all reasonable directions including any requirement by the Probation and Parole Service to attend a suitable rehabilitation course for the treatment of drug or alcohol dependency, provided that should the need arise during the said period by reason of the fact that there is a death in the immediate family of Mark Vincent Leopold McCoy (defined as his mother, father or sibling), Mark Vincent Leopold McCoy be granted permission to travel to and from New South Wales to Norfolk Island on compassionate grounds to attend the funeral of the member of his immediate family as defined. 3. There be no order as to costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 416 OF 2006 ON APPEAL FROM THE SUPREME COURT OF NORFOLK ISLAND BETWEEN: MARK VINCENT LEOPOLD McCOY Appellant AND: THE CROWN Respondent JUDGES: TAMBERLIN, GYLES AND STONE JJ DATE: 1 SEPTEMBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT The court: 1 In the Supreme Court of Norfolk Island the appellant, Mark Vincent Leopold McCoy, pleaded guilty to a charge that he did, on 1 January 2005, assault thereby occasioning actual bodily harm to Martin Joseph Roseingrave. After conviction and a sentencing hearing, the following orders concerning sentence were made on 10 February 2006: '1. The defendant, Michael Vincent Leopold McCoy, be sentenced to imprisonment for a term of three (3) years. 2. The defendant be released, after having served at least eighteen (18) months of that said term, upon entering into a recognizance, without sureties, to the satisfaction of this Court, that he will: (i) be of good behaviour for a period of three (3) years from the date of the recognizance; and (ii) during the said period, undertake and complete a rehabilitation and/or training course that: (a) is specified in the recognizance; (b) is available to him; and (c) upon application made by him not earlier than 1 July 2007, has been approved by the Administrator as appropriate for him, having regard to his then condition and needs.' The appellant appeals against that sentence. 2 The sentence will require amendment because order 2 provides that the period of the recognizance will extend beyond the period of imprisonment. The conditional release of offenders is governed by s 556B of the Criminal Law Act 1960 (Norfolk Island). The relevant portion of that section reads as follows: 'where a person is convicted of an offence, the Court by which the person is convicted may, by order … (b) sentence the person to a term of imprisonment but direct that the person be released, upon the person giving a like security to that referred to in paragraph (a), either forthwith or after the person has served a specified part of the term imposed.' Paragraph (a) provides, amongst other things, for release upon recognizance. The provision is similar to s 20(1)(b) of the Crimes Act 1914 (Cth). The consequences of breach pursuant to s 556C(5) of the Criminal Law Act 1960 (Norfolk Island) are similar to those provided by s 20A(5)(c)(ic)(i) of the Crimes Act 1914 (Cth). The options available to the Court in that event include an order that the person be committed to prison for a term not exceeding the term, or balance of the term, to which the person was so sentenced. As remarked by the Full Court of the Supreme Court of South Australia in Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480, provisions such as this appear to be based upon the theory that the prisoner will serve the term of imprisonment albeit in part in the community rather than in prison ([29], [32]). 3 There is no provision for parole as such in the Criminal Law Act 1960 (Norfolk Island). Section 556B(1)(b) of the Criminal Law Act 1960 (Norfolk Island) fulfils the same purpose. Counsel for the Crown did not seek to uphold the term of the recognizance as extending beyond the head sentence in this case. In our view, that concession is correct. It is wrong in principle that a sentence of imprisonment be extended by this means in this case. It is not necessary to consider the position in relation to other situations. 4 There is also a question as to the form of the conditions envisaged by Wilcox J. We shall return to that question later. 5 The principal argument for the appellant is that the sentence was excessive. The first basis is that Wilcox J sentenced on a view of the facts which was unfavourable to the appellant in significant respects that were not open to be found. The second basis is that the final result was out of line considering the maximum penalty and other comparable sentences. 6 It is contended for the appellant that his Honour found the facts for sentencing by taking into account material that was not before him on the sentencing hearing but, rather, was known to him by reason of his having heard the indictment against two co-accused who had pleaded not guilty and were acquitted. 7 The prosecution's summary of the facts was, by and large, accepted by his Honour. That version was as follows: 'On New Year's Day 2005, in the afternoon, Martin Roseingrave was resting in his house at Grassy Road. Also in the house was a visiting friend of his, Melinda Yates. The accused McCoy and two of his acquaintances, Keeping and Forsyth, came to the house seeking to buy drugs. Two other men, Larrin Robinson and Doug Shea, were called to the house at the request of either McCoy or one of his companions. McCoy was quite persistent in demanding drugs from the three of them. He became angry and threatening when told that there were none there for sale, he accused the occupants of the house of lying and threatened to return and get them one by one if he found out they were lying. He announced that he did not like the three males there, Roseingrave, Robinson and Forsyth, and then he and his two companions left. Robinson and Shea left the house soon afterwards. Between one and two hours later McCoy, Keeping and Forsyth returned to the house and parked their car on the front lawn. McCoy and Keeping went to the front door while Forsyth stood near the car. They were met at the door by Melinda Yates. One of the them said to her, "Is Marty here?". She said, "He's asleep". McCoy then turned and went back to the car and came back to the house with a double-barrel shotgun. He put the shotgun up to her face, about 30 centimetres in front of her face, with the barrel pointing directly into her face. She jumped back in shock. Keeping told McCoy to take the gun away from her face, which he did. McCoy and Keeping then entered the house, McCoy asking if Roseingrave was in the bedroom near the front door. He wasn't and McCoy then went further into the house towards the other bedroom where Roseingrave was. Roseingrave had been asleep but had been woken by the dog barking. He heard McCoy asking for him at the door. He was going to pretend to be asleep but when he heard McCoy coming, he decided to face him. Before he could get off the bed, McCoy walked into the bedroom and shoved the shotgun in his face … Roseingrave rolled over, tried to shove the gun out of his face, brushed it from his hands, still half asleep, not really sure of what was going on. It was shoved back into his face again, touching his cheek, his left cheek, and then McCoy started going on about drugs again and said that, "you're bullshitting us, we know you're selling", kept on with that sort of talk, that line of conversation, and the gun was still in his face. He was trying to repeat there is nothing here, "I can't do anything for you". That seemed to make him even angrier. He pulled the gun away, then put it back into Roseingrave's face. First he stuck it under his neck, under his chin, and then pulledit away. At one stage he tried to put it into Roseingrave's mouth. He rolled his head away so he couldn't, all the time going on about drugs. He said he had come around, tried to be friendly, but that Roseingrave and his companions wouldn't help him. Roseingrave managed to lift the shotgun up and then McCoy fired a shot into the ceiling. That's the first occasion, of course, that Roseingrave realised the gun was loaded. Up until that stage he didn't know. He then brought the gun back down and tried to put it into Roseingrave's face again. This is the barrel. Roseingrave grabbed the shotgun to stop it being brought into his face. There was a struggle and he was dragged off the bed, landed on the floor, still holding onto the shotgun, and he yelled out then, "Sam, Khan" – that's the name of the other two, McCoy's companions, "what the heck is going on", "what the fuck is going on", he said. He assumed that they were there with him, he hadn't seen them. Then Keeping came to the bedroom door, Roseingrave was lying on the floor and he could see Keeping then, who then spoke to him and said, "You stupid fuck, just let go of it", which he did. The next thing, he was bashed in the face with the butt of the gun and then the shotgun was fired off again into the ceiling somewhere or other. He was then hit again across the face with the butt of the gun, not as hard as the first time, then shortly after that he was given a couple of whacks across the head by McCoy with his hands. They then left. He suffered some fairly serious injuries to his face. 1 put before your Honour the photographs … Roseingrave went to hospital. He was treated as an outpatient. He was not admitted, but he had a bruised and swollen nose and face for quite sometime and has ended up with a scar on the bridge of his nose.' 8 The findings of the trial judge in dealing with disputed issues were as follows: There is an issue between you and the Crown as to whether you, with Mr Keeping and Mr Forsyth, went to Mr Roseingrave's house for the purpose of remonstrating with him and his friends, Mr Robinson and Mr Shea, about selling drugs or whether you did so because you yourself wished to purchase drugs from them. At the trial of Mr Keeping and Mr Forsyth, four witnesses, including Ms Yates, gave evidence consistent with the latter explanation. However, Mr Keeping and Mr Shea said the opposite, as you did yourself in an interview with police on the day following the offence and again yesterday in the witness box. Furthermore, some fragmentary evidence from other witnesses supportive of that version was given yesterday. Under all the circumstances, 1 am prepared to give you the benefit of the doubt and make the assumption that your first visit to Mr Roseingrave's house that afternoon was in order to warn him not to supply drugs. I say that without indicating any conclusion as to whether Mr Roseingrave and his friends were in fact supplying drugs. If this was the purpose of your visit, that purpose was accomplished during the first visit. On the evidence of both you and your friends, Mr Roseingrave and Mr Robinson and Mr Shea were left in no doubt about your position and that you would take strong action if you discovered they were continuing to supply drugs. There was therefore no need for you to return to the house a second time. Yet you returned an hour or so later with a loaded shotgun. 1 accept that you did not go to the house with the intention of shooting anyone, but you obviously intended to discharge the firearm. That was why it was loaded. For you to go to the house angry, affected by alcohol and with a loaded firearm was an action with a high potential for misadventure, even tragedy. There is an issue between Ms Yates and yourself as to whether you pointed the shotgun at her as you entered the house. She has consistently stated that you did. I see no reason to disbelieve her. She was startled, but not really frightened because she did not think the gun was loaded. There is a further issue as to whether you deliberately struck Mr Roseingrave with the butt of the gun, thereby causing his facial injuries, or whether this was an unintended consequence of the struggle between you and Mr Roseingrave for control of the gun. I have no hesitation in preferring the evidence of Mr Roseingrave in favour of the former alternative, supported as it is by Mr Keeping's evidence. Mr Keeping said not only did you strike Mr Roseingrave with the butt of the gun, after Mr Roseingrave had let it go, but that he, Mr Keeping, had to stop you doing this a second time. Moreover, it accords with the probabilities that the injuries were occasioned by a deliberate blow after Mr Roseingrave had released his hold on the gun. While Mr Roseingrave was holding the barrel of the gun and you the butt, it would have been impossible for the butt to strike a forceful blow across Mr Roseingrave's face. This blow is the essence of the charge to which you have pleaded guilty. It is the gun butt blow that occasioned the actual bodily harm. The blow was a vicious and unprovoked attack that had nothing to do with warning against drug supply. It seems that you simply lost your self-control and allowed your dislike of Mr Roseingrave to spill over into violence.' 9 Three issues are raised by the appellant about those findings. The first is the purpose of the visits to the victim's premises. His Honour did refer to evidence at the trial of the co-accused in considering this question but, as his finding was favourable to the appellant, there was no relevant sentencing consequence. The second, concerning the pointing of the gun at Ms Yates is no longer pressed, as there was material at the committal from which that could have been drawn. The third concerns the finding as to the precise circumstances of the assault in question. There seems little doubt that his Honour did make a finding on this point unfavourable to the appellant based in part upon material in his possession from the trial of the co-accused. In order to explain this, and in order to assess its effect, it is necessary to say something more about the facts. 10 The evidence as to the facts on the sentencing hearing consisted of the transcript of the committal proceedings, a record of interview on 2 January 2005 between the police and the appellant, some photographs and the evidence of the appellant. The appellant gave the following evidence in cross-examination: 'Q. Did you hit him in the face twice with the butt of the gun? A. Yes, I did. … Q. There is no doubt that the blows to the face with the butt of the gun were deliberate? A. Yes, it was deliberate, to try and get him to let go of the gun. Q. What? A. He had hold of the gun when I hit him in the face, to try and get him to let go of it.' The evidence of the victim at the committal was that the blows to the face had taken place after he had let go of the gun and not as part of any struggle. Mr Keeping did not give evidence at the committal. 11 It is accepted that the trial judge should not have utilised the evidence of Keeping in the way that he did. Absent that evidence, it would be difficult to reject the sworn evidence of the appellant and prefer the version in the depositions of the committal. There is no inherent improbability in the appellant's version as to how and when the blows came to be struck when the evidence of both the appellant at the sentencing hearing and the victim at committal is read in full. The appellant was at all times standing over the victim who was lying down. It should be noted that the appellant's version was not that the blows were unintended as the trial judge seemed to think. 12 The version found by the trial judge is more serious than that of the appellant. The assault was held to be a discrete incident, separated in time from the struggle over the gun. It might be said that the extra degree of deliberation that is involved pales into insignificance compared with the time lapse between the first visit and the second visit to the victim's premises. However, the difference does assume greater than normal significance because of the facts of a prior offence of which the appellant had been convicted which loomed large in the reasoning of the trial judge. The facts of that case, as summarised by the prosecution, were as follows: 'About 5.30 pm on 21 October 2001 he went to the private home of a Mr David Fraser. He approached the house and picked up a large rock weighing about 5 kilos, part of the garden edging, and the then, using both hands, threw the rock through a window, smashing the glass. The occupants of the house, Fraser and his companion, were in the kitchen, they came out to see what was going on and were confronted by McCoy, who said to him, "You killed my cat". He then picked up another rock weighing – apparently they retrieved the rock – 6.7 kilos, picked it up out of the garden and hit Fraser in the face with the rock. Fraser fell to the ground, in a semiconscious state. He then approached Fraser again while he was laying on the grass and kicked him in the head with his right foot, repeatedly kicked him in the area of his head. When he stopped, Fraser was helped to his feet by his distraught partner, a Ms Davies. He then approached Fraser again and began to punch him in the upper torso with both clenched fists and he steadied himself against a tree, sorry, it is McCoy who steadied himself against a tree and then kicked Fraser simultaneously with both feet, knocking him to the ground. It is unknown what happened from then on because Ms Davies fled to ring the police, Fraser was semiconscious and doesn't know what happened. The police arrived, found Fraser on the front lawn of his premises in a dazed condition bleeding from the mouth, cuts on his face and around his nose, nose swollen, burst blood vessels, et cetera. There are photographs here which I will show your Honour of Mr Fraser's face.' 13 The evidence of the appellant as to this incident during cross-examination at the sentencing hearing was as follows: 'Q. You heard me tell the court the circumstances leading up to your conviction for bashing Mr Fraser in the face. Were you listening when I read out the facts of that case? A. Yes, I was. Q. Do you dispute anything that I said about that attack on Mr Fraser, or would you like me to remind you about them all? A. He shot my girlfriend's cat. Q. Yes, you went there, picked up a big rock out of the garden and threw it in his face; is that right? A. That was about the third day. Q. Sorry? A. That was the third day. I went over there the night it was missing and asked him if he had seen the cat. Q. I am not interested in that, all that went on before. The day you assaulted him that took you into court, is it the case that you went there, picked up a big rock out of the garden and threw it through the front window? A. That is right. Q. And then you picked up another one and when he came out you threw it in his face; is that correct? A. I didn't throw it in his face. Q. You slammed it into his face? A. I threw it in the direction of him. Q. And it hit him in the face? A. Yes. Q. Correct? A. Yes. Q. Is it true that you punched him in the face? A. Yes. Q. Is it true that you kicked him with both feet? A. No. Q. Swung off a fence and kicked him with both feet? A. No. Q. Is it correct that you kicked him when he was on the ground and left him semiconscious, left him their semiconscious; is that true? A. No. Q. Did you hit him at all when he was on the ground? A. No, I don't think so, no. Q. Tell me what brought on this attack on Fraser? Anything to do with liquor? A. No. Q. Nothing? Well, so what made you violent on that occasion, the thought your girlfriend's cat had been shot some days before; is that the case? A. Yes, it was.' Then in re-examination, he said: 'Q. You were asked questions about the cat episode and the Fraser episode and asked a couple of questions as to why you went to the house and did what you did to Mr Fraser and you have indicated that there was something over three days. Would you just explain to the court what that situation was? A. The night the cat went missing, it was only a little kitten, big as the Bible, went missing. Paula was upset, she loves her cat, and I went over and asked David Fraser if he had seen my girlfriend's kitten and he said, no, he hadn't. I said, "Oh, well, if you see it, could you let me know". So I went home. The next day, it was morning tea time and I went over and saw David and I said, "Oh, you haven't seen the kitten running around anywhere", and he said, "No, I haven't". The following Sunday, a friend of mine rang me up and said how David Fraser had been bragging how he shot the kitten and I went over and confronted him about it and that's when I hit him. Q. And did he indicate anything about what he actually did to the kitten, if anything? A. Well, from what my friend said, he was bragging about he shot the cat and threw it on the fire, on the barbecue. He had a drum burning when I went over the night, and he had shot the cat and thrown it on the barbecue, on the drum, which was on fire.' 14 The trial judge made the following remarks about that matter: 'You have a serious criminal record dating back to an offence of break, enter and steal almost 20 years ago, when you were still a juvenile. There are later offences of dishonesty, offences concerning possession of illicit drugs and driving offences, including alcohol-related driving offences. The record also includes offences of common assault and malicious damage to property in 1993, hindering police in 1999 and, importantly, assault occasioning actual bodily harm. The latter offence is of particular concern. The facts of that offence resemble to some extent the facts of the present case. In that case also you took upon yourself a vigilante role, attacking a man whom you believed to have killed your partner's cat. Apparently you struck him twice with heavy rocks, and inflicted significant facial injuries. In that case also you seem to have given way to uncontrolled violence. But for the existence of this conviction, I would have adopted the course suggested by Mr Antcliffe. However, having regard to that conviction, I do not think that would be a responsible thing to do.' 15 The starting point for consideration of the appropriate sentence is the maximum penalty provided by the legislation for this and cognate offences. The maximum penalty for this offence is imprisonment for five years (s 59). The maximum penalty for maliciously wounding or inflicting grievous bodily harm with intent in any such case to do grievous bodily harm is imprisonment for life (s 33). Where upon such a trial the jury are satisfied that the accused is guilty of the wounding or inflicting grievous bodily harm but are not satisfied that he is guilty of the intent charged, he may be found guilty of the offence of malicious wounding or inflicting grievous bodily harm which has a maximum term of five years (s 34, s 35). Causing grievous bodily harm by any unlawful or negligent act or omission carries a maximum penalty of imprisonment for two years (s 54) as does common assault (s 61). The matter may have been dealt with summarily with consent pursuant to s 476 in which event the maximum penalty would have been two years' imprisonment. 16 It is necessary to bear in mind that the actual bodily harm was occasioned by the use of the butt of the rifle, not by discharging of the firearm. The use of a loaded firearm is a relevant circumstance, but is not the gist of the offence charged. Furthermore, there is no finding that the appellant entered the premises on the second occasion intending to carry out an assault of the kind which occurred. Rather, the finding is that he intended to discharge the loaded firearm to frighten the victim and the other inhabitants of the premises. The actual bodily harm, although deliberate, was the result of the struggle, not of premeditation in the usual sense. The bodily harm, whilst significant, was not at the upper end of actual bodily harm. 17 In those circumstances, in our opinion, a sentence of imprisonment of three years, compared with a maximum of five years, is excessive, particularly considering the plea of guilty. The statistics, upon which counsel for the appellant relied, are of limited value particularly as they do not relate to Norfolk Island. However, they do provide some support for the conclusion which we have reached about the severity of this sentence. A comparison with the prior offence to which his Honour referred is also relevant. The circumstances of that offence were objectively more serious as a case of deliberate infliction of actual bodily harm than the present, yet the sentence was six months' imprisonment wholly suspended. The jump from that to the present sentence is great. Even if that sentence was on the low side (which we doubt) the two sentences are disproportionate. In our opinion, a head sentence of imprisonment for two years would adequately reflect the seriousness of what occurred. That result accords with the joint view of the parties arrived at after argument on the appeal and notified by them after this portion of the judgment was written. 18 The parties are also agreed that it would be appropriate that the appellant should be entitled to be released after having served at least 12 months of the term of imprisonment upon a conditional recognizance. That is an appropriate period and is proportionate to the trial judge's orders once the head sentence is reduced. 19 The trial judge had a difficult task in framing appropriate conditions for release in view of the absence of both a parole system and a system of supervised treatment of drug or alcohol dependency on Norfolk Island. The conditions imposed were said to be too uncertain and potentially oppressive. Those problems will remain for future cases, and require attention by those responsible for the administration of justice on Norfolk Island. The problems are solved in the present case because the appellant desires to serve the balance of the term upon release in New South Wales and the prosecution is satisfied that the relevant facilities can be availed of in that State. The conditions which have been proposed are appropriate to be implemented in substance. There is no need to spell out the consequences of breach in the orders (s 533C Criminal Law Act). 20 The orders of the Court are as follows: 1. The appeal against the sentence imposed upon the appellant, Mark Vincent Leopold McCoy, by the Supreme Court of Norfolk Island on 10 February 2006 be upheld. 2. The orders of 10 February 2006 be set aside and in lieu thereof it be ordered that: (1) Mark Vincent Leopold McCoy be sentenced to imprisonment for a term of two years, commencing from 10 February 2006. (2) Mark Vincent Leopold McCoy be released after having served at least 12 months of that said term, upon entering into a recognizance, without sureties, that he will: (a) be of good behaviour for the balance of the period of the said term; and (b) during that said period, reside in New South Wales and accept the supervision and guidance of the New South Wales Probation and Parole Service and obey all reasonable directions including any requirement by the Probation and Parole Service to attend a suitable rehabilitation course for the treatment of drug or alcohol dependency, provided that should the need arise during the said period by reason of the fact that there is a death in the immediate family of Mark Vincent Leopold McCoy (defined as his mother, father or sibling), Mark Vincent Leopold McCoy be granted permission to travel to and from New South Wales to Norfolk Island on compassionate grounds to attend the funeral of the member of his immediate family as defined. 3. There be no order as to costs of the appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Gyles and Stone. Associate: Dated: 1 September 2006 Counsel for the Appellant: Mr BM Antcliffe Solicitor for the Appellant: Griffith Nicholson Counsel for the Respondent: Mr WJ Wilcher Solicitor for the Respondent: White & McDonald Date of Hearing: 4 August 2006 Date of Judgment: 1 September 2006