New South Wales Court of Criminal Appeal CITATION : Regina v Drew [2000] NSWCCA 384 FILE NUMBER(S) : CCA 60437/97 HEARING DATE(S) : 4/8/00 JUDGMENT DATE : 4 August 2000 PARTIES : The Crown Clarence Drew (Appl) JUDGMENT OF : Newman J at 1; Sperling J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/51/0115 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : C K Maxwell QC (Crown) G F Jauncey (Appl) SOLICITORS : S E O'Connor (Crown) Peter Murphy (Appl) LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Fernando 76 A Crim R 58 R v Hickey, unreported, CCA, 27 September 1994 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60437/97 NEWMAN J SPERLING J FRIDAY, 4 AUGUST 2000 REGINA v Clarence DREW JUDGMENT 1 NEWMAN J: This is a very sad matter arising, as it does, as Mr Jauncey of counsel has rightly submitted this morning, from a background of deprivation. 2 The applicant, Clarence Drew, pleaded guilty before Ducker DCJ at Lismore to a charge of maliciously wound with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. That section provides a maximum penalty of penal servitude for 25 years; plainly enough, a crime standing high in the criminal calendar. 3 The applicant had in fact been indicted before his Honour on a count of wound with intent to murder but the Crown accepted his plea to the charge of maliciously wound with intent to do grievous bodily harm in full satisfaction of the indictment. 4 In the event, his Honour imposed a head sentence of ten and a half years constructed as to a minimum term of seven years and an additional term of three years and six months. 5 The applicant relies upon a single submission; namely, that his Honour's sentence was manifestly excessive. 6 I turn then to the objective features of the matter. As I said at the outset of these reasons, the background to the matter is one of extreme deprivation. The victim, one Allan Williams, was at the relevant time the administrator of the Bogan Lands Council. Within the ambit of authority of the Bogan Lands Council is a settlement known as Box Ridge. 7 Relatives of the applicant reside at Box Ridge. As I understand the matter, the applicant at the relevant time was not so resident. However, there is no doubt that there were persons at Box Ridge who were both related to and close to the applicant in the matter. 8 His Honour observed on the evidence that bad blood had been part of the mores of the inhabitants of the Box Ridge settlement principally because those who held power on the Bogan Lands Council would distribute, as rightly described this morning by Mr Jauncey, the meagre funds available to those who were either related or close to them, to the obvious disadvantage of those who did not fall within that circle. 9 It was against this background that the crime in question was committed. That the crime was one which was planned and premeditated is not the subject of doubt. 10 Before his Honour an agreed statement of facts was tendered. His Honour in those reasons for sentence did not depart at all from those agreed facts. 11 The evidence of premeditation was that statements made by those who were ultimately involved in the attack upon Allan Williams had, earlier in the day of the attack, made it plain that they were going to carry out an episode of violence. The scene of that violence was the Queen Elizabeth Park football ground in South Casino. The victim had arrived with his de facto wife, his sister and his son, who was but eight years, and a nephew, who was aged about six. 12 Soon after Williams arrived, the applicant and four others arrived by motor vehicle and approached Williams. They were armed, one with an iron bar, a piece of timber, a knife, a beer bottle and, in the applicant's case, a machete. An attack was carried out. Williams attempted to run away but was struck several times, finally falling to the ground and at that moment he was struck with the machete by the applicant. Others struck him with an iron bar and a piece of timber and he was kicked. 13 The five left Williams lying on the ground and appeared to be walking away. However, the applicant then detached himself from the group, went back to where Williams was and struck him a blow across the face with the machete. That blow was in the region of Williams' nose and cheeks. 14 He was taken to hospital and treated and was found to have a number of injuries including a 14 centimetre incised wound across the bridge of the nose, extending horizontally across both cheeks, involving the fracture of the nasal bones and the exposure of the left cheek bone, a five centimetre jagged vertical injury to the forehead, above the nose, exposing the skull, a seven centimetre incision wound on the back of the head, through the outer table of the skull, a seven centimetre vertical laceration over the occipital region, a four centimetre vertical laceration to the scalp, a one centimetre jagged vertical laceration to the scalp and superficial lacerations and bruising to the region particularly around the left eye. 15 These objective facts involved a serious breach of the criminal law. While it was submitted on the applicant's behalf that the use of a machete was not as criminally culpable as the use of a firearm, let me make it plain at once that the use of a machete to strike another human being is treated very seriously by this Court. A machete is obviously enough a very dangerous weapon. 16 As his Honour rightly points out, he was sentencing for malicious wounding, not for attempted murder, and his Honour, as I would understand his reasons on sentence, kept his focus very clearly on that distinction. 17 His Honour, in dealing with the objective facts, pointed out that this was not a matter where the episode occurred in an unpremeditated fashion as a result of an argument, say, arising between persons who are intoxicated, but a planned and premeditated attack. 18 The applicant's subjective features were not of great assistance to him, save for one feature, to which Mr Jauncey has rightly drawn the Court's attention this morning. He has an unfortunate criminal record. He is now in his fortieth year, having been born on 10 December 1960. It is unnecessary for me in the circumstances to detail, as his Honour did, the matters on the applicant's criminal record. Suffice it for me to say that they involve a number of convictions for crimes of violence, including three for malicious wounding, two for assault occasioning actual bodily harm, six common assault convictions, four for assaulting police and two for assaulting females. 19 His Honour rightly referred to the fact that many of the previous convictions were involved in situations where the applicant was intoxicated. This does not seem to be the case here. 20 The matter which Mr Jauncey particularly relied on in both his written submissions and as amplified orally before the court this morning was the matter of the past deprivation and the atmosphere which existed within the Aboriginal community at Box Ridge. He put it that this crime arose within a particular community because of problems which arose within that community. He adverted to the power struggle which existed between those who had authority within the land council, including the victim, and those who were deprived by that exercise of power by those in control, who included the applicant's relatives and those close to him. He adverted to what had fallen from Wood CJ at CL in R v Fernando 76 A Crim R 58 as applying to this particular matter. 21 In his remarks on sentence his Honour did in fact advert to Fernando and dealt with it in detail. He also of course did, in considering the issues which arose in Fernando, advert to what had also fallen from this Court in R v Hickey, unreported, Court of Criminal Appeal, 27 September 1994 where this Court observed the mitigating effect of being an Aboriginal person from a disadvantaged background, alcohol abuse by family, lack of home discipline, education deprivation and failure to maintain supportive relationships, loses much of its force where the offender has committed similar serious offences in the past. That is the case here. 22 It was put that when one looks at the sentencing statistics prepared by the Judicial Commission, that this case stands out in terms of sentencing for matters arising under s 33 of the Crimes Act where a plea of guilty has been made. 23 It is true, and his Honour took it into account, that the plea of guilty in this case was entered at an early stage, a delay had occurred between the entering of the plea and the sentencing, caused, as I understand his Honour's remarks on sentence, by the fact that a number of trials involving those who were involved in the particular episode of violence had occurred before the applicant was sentenced. 24 As I said at the outset, this is a very sad case arising from a community which is deprived and to which the social mores of this country do not necessarily apply. However, the fact of the matter is that the objective circumstances of this attack were of the most serious type. The weapon used by the applicant was one which, as I have already said, is a weapon which this Court takes the use of such weapon very seriously indeed. The fact that the attack was premeditated and carried out in company are very serious aggravating features. 25 Even taking into account the tragic background to the attack, I am of the view that his Honour was confronted with a sentencing problem which required him to impose, as he did, a sentence which involved condign punishment. 26 In the circumstances, I cannot see how his Honour fell into error in dealing with the matter as he did and, accordingly, while the seriousness of the matter in community terms calls for the application for leave to appeal to be granted, I would do so but dismiss the appeal. 27 SPERLING J: I agree. 28 NEWMAN J: The orders of the Court will be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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