New South Wales District Court CITATION: R v Tony MCLEOD [2010] NSWDC 237 This decision has been amended. Please see the end of the judgment for a list of the amendments. JUDGMENT DATE: 17 June 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Non-parole period of 22 months, balance of the term of 23 months. CATCHWORDS: CRIMINAL LAW - sentence - maliciously inflict grievous bodily harm in company - convicted following jury trial - extremely serious injuries inflicted upon victim - unprovoked attack - offender bought assault to a stop - joint criminal enterprise - objective seriousness above middle of the range - no relevant criminal record - offender suffering from adjustment disorder - offender's wife suffering from depression - no exceptional circumstances warranting taking hardship on family into account in sentencing - parity - no other alternative to full-time imprisonment LEGISLATION CITED: Crimes Act 1900 s 35(2) Crimes (Sentencing Procedure) Act 1999 s 5, s 21A, s 32 Markovic v The Queen and Pantelic v The Queen [2010] VSCA 105 CASES CITED: R v Edwards (1996) 90 A Crim R 510 R v Groundar (2001) 127 A Crim R 331 R v Mitchell, R v Gallagher (2007) 177 A Crim R 94 PARTIES: Regina Tony McLeod FILE NUMBER(S): 2008/6288 COUNSEL: Mr Patrick for the Director of Public Prosecutions Mr Todd for Mr McLeod JUDGMENT 1. This afternoon I am sentencing Tony McLeod. I am sentencing him for a serious crime, known as maliciously inflict grievous bodily harm in company. That is made into a crime by the Crimes Act 1900, s 35(2). It carries a maximum of ten years imprisonment. In addition, when I am sentencing Mr McLeod, I will take into account, as requested by him and agreed to by the Crown Prosecutor, an offence of affray committed on 1 September 2007 and I sign a document under s 32 of the Crimes (Sentencing Procedure) Act 1999 to that effect. 2. Mr McLeod was charged with the offence and pleaded not guilty. He was tried by a jury at the District Court at Parramatta, before me. On 5 March 2010 the jury returned a verdict of guilty to the charge. It rejected an alternative charge which was available to them, that Tony McLeod assaulted the victim causing him actual bodily harm in company. 3. When a Judge sentences an offender, the first thing the Judge ought to do and I do this if I have not done it already, is to formally convict Mr McLeod of the offence of maliciously inflicting grievous bodily harm in company. 4. It is important in sentencing an offender for the Judge to set out publicly, on the record, a brief factual summary of the offence that the person has committed. This is so the seriousness of that crime can be understood in the context of the sentence which the Judge imposes. 5. This crime occurred in the early hours of 1 September 2007. It was about half past 5 in the morning. The innocent victim was a man named Roberto Beltran, who was in his late twenties. He had been out the previous evening and was near Parramatta Railway Station at about that time. Mr McLeod had also been out the previous night and was also in the same area. He was with three others. He was with his brother, Ricky McLeod, as well as with men named Trent Heinze and Brett McManus. 6. Ricky McLeod, who had become separated from the other three, saw Mr Beltran coming out of a laneway not far from the Parramatta train station. Ricky McLeod began yelling at Mr Beltran, saying something like "This one gunna fight." He started holding on to Mr Beltran, who understandably tried to avoid him. At about the time that Ricky McLeod yelled what I said about Mr Beltran, the other three were seen by CCTV cameras to turn around. I infer that they turned around in response to something that Mr Ricky McLeod said, probably the words that I quoted. Not only did they turn around, the three of them ran back towards where Mr Ricky McLeod was with Mr Beltran. 7. Mr Beltran and Ricky McLeod moved across the road. Mr Beltran tried to avoid Ricky McLeod but unsuccessfully. What happened next was that Ricky McLeod punched Mr Beltran to the face. This caused him to fall backwards onto the ground. This occurred as Tony McLeod, Trent Heinze and Brett McManus were approaching. At that stage the three men approaching obviously had a choice. They could have intervened to stop Ricky McLeod picking on this unfortunate stranger. They not only failed to make that choice, they chose a far more serious option. They approached him on the ground. Mr Beltran was then kicked a number of times to the head and the body. This was as he was lying defenceless on the ground. One of the offenders used his foot to stomp on Mr Beltran's head. Mr Beltran provided no resistance, he just remained on the ground. After an unknown number of kicks, what happened was that Mr Tony McLeod pushed the others away from Mr Beltran. After throwing Mr Beltran's shoes over a nearby fence to a construction site, the four men walked away from the scene. 8. They went back to a nearby hotel, where Tony and Ricky McLeod became involved in an argument which led to a fight with a number of other people at the hotel and that has given rise to the offence of affray that I am taking into account when I sentence Mr Tony McLeod. 9. It is very important to record just what the injuries were that Mr Beltran sustained in this cowardly and brutal attack. He sustained bruising and swelling around his right eye. He sustained a subdural haemorrhage, which is a bleed on the surface of the brain. He had a bruise on the brain at the front. He sustained a fractured head around the left temporal area. His right eye socket was fractured. His nose was fractured. 10. Understandably, Mr Beltran required an operation when he went to hospital. He required brain surgery. It was performed on the same day. Mr Beltran remained in intensive care for nine days. He was transferred to the brain injury unit of the hospital and remained in a post traumatic amnesia for thirty-two days. On discharge from the neuro-surgical ward, he had impaired orientation and concentration. His recall was impaired and he had poor standing balance. He was finally discharged from hospital on 4 October 2007, over a month after being attacked. 11 Needless to say, these injuries are extremely serious. I do not say that they are the very worst kind of injury that can amount to grievous bodily harm, but they are extremely serious and that is a factor which it is important for me to take into account in sentencing Mr Tony McLeod. 12. Mr Todd of counsel, who appeared for Mr Tony McLeod at the trial and on sentence, has argued that there are two different scenarios which are consistent with the jury's verdict, and which could be alternative findings made by me. The first is that his client was present when his brother hit Mr Beltran and participated in the assault of kicking him on the ground. In other words, he was one of the men kicking. The alternative was that his criminal liability was one properly characterised as being a participant in a joint criminal enterprise. I am inclined to accept the second scenario. I am not satisfied beyond reasonable doubt, on an examination of the evidence, that Mr Tony McLeod was one of the persons who actually kicked or stomped on the unfortunate Mr Beltran. 13. I am also satisfied, and it is part of the facts which I have read out, that Mr Tony McLeod was the person who brought the assault to a stop. However it also needs to be appreciated that Mr Tony McLeod is guilty of this offence as found by the jury, as part of a joint criminal enterprise. It must not be under-estimated that he was there present when the three others were assaulting the unfortunate victim on the ground. He is as guilty as the others in that offence. 14. However, it is important to point out some aspects about his role, which I accept as the then Chief Judge at Common Law, Woods J said in R v Goundar [2001] NSWCCA 198, 127 A Crim R 331 at [32] that not everyone in a joint criminal enterprise necessarily "shares the same degree of objective criminality." Nevertheless the assessment of criminality "should begin with the proposition that each intended the crime and each set out to carry it into effect". His Honour went on to say in the following paragraphs that there would be cause for differentiation in the roles played by joint criminals on occasions. 15. This case is an example. Clearly, Mr Ricky McLeod was the ring leader in that he was the one who first picked on the victim, hailed his co-offenders and punched the victim to the ground. It also needs to be taken into account the finding which I made that I am not satisfied that Mr Tony McLeod actually was one of the persons kicking the victim. It also needs to be taken into account that he brought the assault to a conclusion. 16. I need to make some assessment of the degree of seriousness of this crime. In other words, I have to work out just how serious an example of this kind of offence this particular crime was. Mr Patrick the Crown Prosecutor at the trial and who appeared in the sentence proceedings, submitted that the offence was above the middle of the range of objective seriousness. That is, that so far as there is a range of seriousness for this crime, this falls not at the lower end or even in the middle, but above the middle. There is no suggestion that it is the worst type of this crime, but the argument of the Crown Prosecutor is that it is not in the middle of the range. He supported his argument with the following submissions. 17. Mr Beltran was subjected to an unprovoked attack by the co-offender, but then Mr Tony McLeod joined in with the attack. I add here, that means joined in jointly as part of the joint criminal enterprise. Mr Beltran received very serious injuries which I have referred to and was required to undergo extensive hospitalisation. There is also evidence that he suffers some ongoing deficit. It is not medical evidence, but he indicates that he has some difficulty, for example, in air conditioning. Mr Patrick argued that the level of violence inflicted upon the victim was high. In addition he argued that the victim was very vulnerable and the offenders inflicted their assault - Mr Tony McLeod as a joint offender in the joint criminal enterprise - whilst the victim was on the ground. 18. Mr Todd on the other hand argues that the offence was well below the middle of the range of objective seriousness. He points to the fact that his client was a participant in a joint criminal enterprise, rather than as one of the persons actually inflicting the violence. He points to the actions of his client in bringing about the cessation of the assault. He points to evidence that the assault itself was relatively brief, namely about a minute or so. He argues that his client's intervention may have saved the victim's life. 19. To my mind, the crime committed by Mr Tony McLeod was above the middle of the range of objective seriousness. It was a violent and vicious attack that he participated in, in the way that I have said. It was short lived, but it was unprovoked and an attack on one man by four others. The victim was on the ground and helpless. The injuries sustained were, as I have said, extremely serious. I do not think the nature of Mr Tony McLeod's participation and the fact that he intervened bring the matter into the middle of the range of objective seriousness. The other factors to my mind put the matter clearly above that range. 20. I should add that Mr Todd also drew my attention to the Court of Criminal Appeal's decision in R v Mitchell, R v Gallagher [2007] NSWCCA 296, (2007) 177 A Crim R 94. Mr Todd took me to [35] of Howie J's judgment with which Giles JA and Fullerton J agreed. That was also a case about a man being set upon and bashed up by a group of others. Howie J, said as follows - " The judge took into account as a mitigating factor that the respondents did not intend the degree of harm that was caused to the victim. That consideration would be understandable in a case where the injury far outweighed what might have been envisaged as the consequence of the behaviour causing it. Such a consideration might be relevant in the case of, for example, a single punch to the face that results in the victim falling to the ground and suffering very grievous injuries as a consequence. But in this case the respondents indulged in what her Honour described as a brutal and sustained attack upon a defenceless person by kicking or stomping on his head and body while he was lying on the ground. The fact that the respondents might not have foreseen that the consequence of such serious conduct was to have left the victim in a vegetative state is of little, if any, weight in my opinion." 21. In this case there is of course the possibility that Mr Beltran's head injury was sustained when he fell after the first punch inflicted by Ricky McLeod. Nevertheless, Mr Tony McLeod's participation in the joint criminal enterprise was to viciously and brutally participate in the sustained attack on the victim, despite the fact that he was helpless and perhaps may have sustained a very serious injury from his initial fall. Once again, I emphasise that Mr Tony McLeod's role was that as a participant in the joint criminal enterprise without inflicting any of the actual physical blows. 22. It is important when a judge sentences an offender, for the judge to consider the personal background and circumstances of the offender. In this case there are very helpful reports about Mr Tony McLeod. One is a pre-sentence report prepared by a Probation and Parole officer and the other is a report provided by Mr Watson-Munro, a consultant forensic psychologist. 23. In the pre-sentence report, the author recorded that Mr McLeod was born in New Zealand and came as a child to Australia. He had a stable childhood and positive and supportive relationships with his parents. He has now been married for eight or nine years. They have four children aged six, four, one and at that stage, eight weeks. His wife is struggling to cope emotionally with the aftermath of the court case. She said that her husband was a positive role model for their children and played an active parenting role as well as being the sole wage earner. There has been increased hardship on the family after the charge and before the trial. 24. He left school at eighteen and undertook some work, but then became a full-time carpet fitter, and has been doing this sort of work now for some years. He did not originally have a particular alcohol problem, although on occasion he drank to excess. However after the charge he did resort to binge drinking for a while, but has now corrected that habit. He is not previously known to the Department of Corrective Services and co-operated in the provision of the report. The author said that he was unlikely to require or benefit from supervision. The author assessed him as suitable for a community service order and eligible for a periodic detention order. 25. Mr McLeod has only one entry on a criminal record and that is for behaving in an offensive manner at a public school. It occurred in 1999 and that offence carries no adverse weight at all so far as his sentencing is concerned. 26. Mr Watson-Munro found no gross psycho pathology, but said it was apparent that he was suffering from an adjustment disorder. He had been suffering significant depression and anxiety and low self esteem and guilt, all as a result of being charged with this offence. Mr Watson-Munro found him a motivated individual, who is keen to deal with his underlying issues. He has considerable concerns regarding his wife's ability to cope if he goes into full-time custody. He does not have any drug taking history and it is Mr Watson-Munro who recorded the history of the drinking increasing after the charge. 27. Mr Watson-Munro concluded that despite the serious nature of the conviction, he was a man with some potential in life. He said that advisedly "on the basis of his work ethic, his strong family orientation and in this regard I believe that with continuing support and supervision his overall prognosis from a forensic perspective is positive." He anticipated a deterioration in his mood after being sentenced. 28. There is a medical report from a Dr Obeysekera, who is the family GP. He has diagnosed Mrs McLeod as suffering from depression, which has been aggravated since this charge was pressed against her husband. She is on higher amounts of anti-depressants in order to help her function at home with her four children. She has difficulty sleeping at night and there is enormous stress in her life. Occasionally she has migraines. The doctor said that in the absence of her husband's help and income, she "will be devastated and the health of the children will get much deteriorated." 29. In addition there are some references. One of them is from the same medical practitioner who gave the same indication about the impact on the family. There are neighbours and former neighbours who knew Mr Tony McLeod and his family and who were very impressed by him as a family man and a neighbour. They described him in terms as of a loving and protective family man. He was very considerate and helpful as a neighbour. 30. This aspect I have referred to recently - of the potential hardship which will be inflicted on the family - was the subject of one of Mr Todd's submissions. He said that the hardship was such that it should be taken into account as a mitigating factor and influence the kind of sentence which I would impose. He referred to the fact that there was also Mrs McLeod's sister in the living in the household as well. 31. As I said during the course of argument, the law on this topic is well settled. It has been the subject of a recent decision of the Court of Appeal in the Supreme Court of Victoria, Markovic v The Queen and Pantelic v The Queen [2010] VSCA 105. In a joint judgment comprising the President and five Justices of Appeal, their Honours referred at [17] to what Gleeson CJ had said in the New South Wales Court of Criminal Appeal in R v Edwards (1996) 90 A Crim R 510 at 515. The quotation extracted from Gleeson CJ's judgment was the following, "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, ...it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment." The Justices of the Victorian Court of Appeal affirm the test that "there must be exceptional circumstances to warrant consideration of hardship upon a family." 32. Some of the factors which their Honours referred to included the primary function of the sentencing court to impose a sentence commensurate with the gravity of the crime. Their Honours also pointed out in the same paragraph that treating an offender who has needy dependents more leniently than one equally culpable co-offender who has none would "defeat the appearance of justice" and be "patently unjust." 33. This is unfortunately a case which does not fall within exceptional circumstances in my opinion. The consequences of the crime on Mr Tony McLeod's family will be brought about by own his actions and by the need for me, as a sentencing judge, to sentence an offender for what can only be regarded as a very serious crime. Mr McLeod I should add, is now thirty-one. 34. The Crown Prosecutor correctly observed that there were no aggravating features so far as s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 are concerned. 35. One factor which both counsel helpfully addressed was what the law calls parity. Parity in sentencing arises where more than one person is sentenced for their participation in a crime. Normally people who participate equally in the same crime receive - and should receive - the same sentence. There will be exceptions sometimes, for example one offender in a joint crime will be a far more serious or significant participant than another. One offender may have a serious criminal record, much more serious than another. 36. In this case, two of the other three men pleaded guilty and were sentenced by his Honour Judge Ellis in this court on 10 June 2008. The two offenders were Trent Heinze and Ricky McLeod. I should add that the fourth man was also charged, that is Brett McManus. He was acquitted by a jury after a trial which followed Mr Tony McLeod's trial. 37. Judge Ellis, in sentencing Mr Ricky McLeod and Trent Heinze, imposed upon them the same sentence, namely one of three years and nine months with non parole periods in each case of two years. There are in my view significant differences between Mr Tony McLeod's case and the cases of these two other men. The first is of course that the two other men pleaded guilty. They apparently pleaded guilty at the first available opportunity and his Honour allowed to each of them the maximum discount of twenty-five percent, because of their plea of guilty. The sentence which his Honour imposed of three years and nine months, seems to me to indicate that his Honour regarded an appropriate starting point, as a sentence for this crime, of five years. Mr Ricky McLeod's participation in the crime was more serious than Mr Tony McLeod's. Judge Ellis found that it was Ricky McLeod who started the fight. That is consistent with my view, and indeed the Crown Prosecutor acknowledged in this case that Mr Ricky McLeod was clearly the ring leader. But in addition, Ricky McLeod had a record of previous convictions. They not only included traffic offences, but an offence of assault and affray as well as possessing a prohibited weapon. His Honour found that Mr Ricky McLeod's record was a positively aggravating feature. There were two additional factors relevant to Mr Ricky McLeod, one was that he committed the crime whilst on conditional liberty. And the other was another offence taken into account under s 32 of the Crimes (Sentencing Procedure) Act. 38. Mr Trent Heinze was also a more serious offender. Judge Ellis found that he had punched and kicked the victim in the head and upper torso. I have not been able to find that Mr Tony McLeod was one of the persons actually inflicting physical violence. Trent Heinze also had a criminal record. It was more serious than Ricky McLeod's. It included an assault of maliciously inflicting grievous bodily harm, that is the same offence that he was being sentenced for. It had occurred in 2002. He had a serious driving offence, which attracted some months of custody and an offence involving a knife, as well as possessing a prohibited weapon which attracted custody as well. His record was regarded by Judge Ellis as positively aggravating. Judge Ellis assessed clearly the overall appropriate sentence for these two co-offenders as one of five years. 39. Mr Tony McLeod whom I am sentencing does effectively not have any criminal record. He was not on conditional liberty. He did not start the fight, nor was he a physical participant in the sense of inflicting any physical blows. But he is not entitled to any discount for a plea of guilty. That is not an aggravating feature, it simply is that he does not gain the benefit that somebody who pleads guilty does. I would assess his participation as less significant than the co-offenders and also he lacks certain important aggravating features which I have referred to. 40. I should say at this stage that Mr Todd, in the interests of his client, gamely canvassed three alternatives to full-time imprisonment. One was a suspended sentence, another was a sentence of periodic detention and the third was a community service order. I reject all of those as appropriate sentences. To my mind - as I need to consider under s 5 of the Crimes (Sentencing Procedure) Act - there is no other alternative than full-time imprisonment for a crime of this seriousness that Mr Tony McLeod participated in. 41. I would assess an appropriate starting point for a sentence - and indeed, the appropriate sentence to impose - as one of three-and-a-half years, namely forty-two months imprisonment. It will commence yesterday 16 June 2010, because he had a day in custody. His prospects of rehabilitation are good. He is unlikely to re-offend. He has strong family ties. He will need support when he comes out of prison. 42. Mr Todd submitted that there are special circumstances for adjusting what the normal non parole period would be for a sentence. In this case, where I would be imposing a sentence of forty-two months, the normal non parole period would be seventy-five percent or some thirty-one months, just over two-and-a-half years imprisonment. His Honour Judge Ellis also thought that there was special circumstances justifying an adjustment in the cases of the co-offenders. Mr Patrick, in this case, agreed or did not dispute that there are special circumstances warranting an adjustment. 43. I propose to adjust the non parole period, using roughly the same percentage as his Honour did, which I calculated at about fifty-three percent. Accordingly, I propose to impose a non parole period of twenty-two months which will commence yesterday. Now I am going to sentence you Mr McLeod, if you would stand up. 44. I set a non parole period for your sentence - that is the minimum period for which you must be kept in detention - as twenty-two months. It will commence yesterday on 16 June 2010 and it will expire on 15 April 2012. 45. The balance of the term will be twenty-months, commencing on 16 April 2010 and concluding on 15 December 2013. The first date on which it appears on the information available to me that you will be eligible for parole is 15 April 2012. Have a seat Mr McLeod, for a moment. HIS HONOUR: Now gentlemen, Mr Todd and Mr Patrick, three things: one, any relevant factors I have not taken into account or any obvious errors. Secondly, any factual matters and thirdly, the mathematics whether I have got that right. TODD: No nothing from me thank you, your Honour. HIS HONOUR: On any of those topics? TODD: No. HIS HONOUR: No, okay. Mr Patrick? PATRICK: No your Honour. HIS HONOUR: Okay. There is a New Zealand passport here. PATRICK: I think that was surrendered on bail conditions your Honour. HIS HONOUR: Was it, I should probably hand it back should I. All right I will return the passport. 46. Mr McLeod you have received a sentence of forty-two months, that is three-and-a-half years gaol for this offence. The non parole period that you have to stay in gaol is twenty-two months. It commenced yesterday and it expires on 15 April 2012. That is the first date on which you will be eligible for parole. I do not direct your parole, the Parole Authority directs your parole. They will consider your parole and decide whether to release you on parole or not. I have no reason to think that they would not release you on parole, on that day. Then they will fix conditions and terms for your parole, do you understand that? OFFENDER: Yes your Honour. HIS HONOUR: All right have a seat. Now what were you going to say Mr Todd, nothing? TODD: Nothing your Honour. HIS HONOUR: All right. Now my associate's asked about exhibits, what should we do with the exhibits. PATRICK: Yes I'd ask they be returned to the Crown your Honour. HIS HONOUR: All right. I can't remember whether there are any defence exhibits, both of you have a look through, and Crown exhibits to the Crown and defence exhibits to the Defence, looks as though my associate's picked it. Sentence exhibits I will keep with the papers. TODD: Thank you your Honour. HIS HONOUR: Is there anything else Mr Patrick, Mr Todd? PATRICK: No your Honour. TODD: No your Honour. ********** 03/11/2010 - typographical error - Paragraph(s) headnote DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.