New South Wales Court of Criminal Appeal CITATION : Regina v Scott [2000] NSWCCA 535 FILE NUMBER(S) : CCA 60357/00 HEARING DATE(S) : 8 December 2000 JUDGMENT DATE : 8 December 2000 PARTIES : Regina v Brendan Scott JUDGMENT OF : Dowd J at 32; Howie J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/121 LOWER COURT JUDICIAL Solomon DCJ OFFICER : COUNSEL : S.J. Odgers SC (Applicant) L.M.B. Lamprati (Crown) SOLICITORS : Nyman Gibson and Company (applicant) S.E. O'Connor (Crown) LEGISLATION CITED : Crimes Act 1900 - s 35 DECISION : Leave to appeal granted. Appeal refused. IN THE COURT OF CRIMINAL APPEAL 60357/00 DOWD J HOWIE J FRIDAY 8 DECEMBER 2000 REGINA v BRENDAN SCOTT JUDGMENT 1 DOWD J: I will ask Justice Howie to deliver the first judgment. 2 HOWIE J: This is an application for leave to appeal against a sentence imposed upon the applicant in the District Court on a charge of malicious wounding. The applicant was arraigned on an indictment containing one count alleging an offence of wound with intent to murder and an alternative count of malicious wounding contrary to s 35 of the Crimes Act 1900. On 15 March 2000 the applicant pleaded guilty to the alternative count and that plea was accepted by the Crown in full discharge of the indictment. 3 The offence to which the applicant pleaded guilty carries a maximum penalty of 7 years imprisonment. He was sentenced by his Honour Judge Solomon to a sentence of 4 years 4 months imprisonment to date from 5 May 2000. Having found special circumstances, his Honour specified a non-parole period of 2 years 6 months which will expire on 4 November 2002, the date upon which the applicant is eligible to be released to parole. 4 The applicant is an Irish national. On St Patrick's Day, 17 March 1999, he went with a female acquaintance, the victim in this matter, to a Sydney hotel to celebrate the occasion. Both the applicant and the victim consumed a considerable amount of beer before they left that establishment to proceed to another hotel nearer the place where they were living. When they arrived at the second hotel there was a disagreement because one of them wanted to go into the hotel and the other wished to go home. There were different accounts given by the applicant and the victim about this argument but it is unnecessary to resolve that factual issue. There is no doubt, however, that the applicant was annoyed with the victim as a result of this altercation. 5 The applicant and the victim returned to the place where they were living with a number of other persons. The victim had commenced to stay at those premises on 11 March. She was residing there temporarily while trying to find other suitable accommodation. Although the victim and the applicant had at one time been in a close relationship, the victim had gone back home to Ireland and had only returned to Australia shortly before moving into the premises. According to the victim, the applicant had told her during the argument that he wanted her to leave the house. 6 It was clear to other persons, who were in the premises when the applicant and victim returned there, that relations between them were strained. For a short time they both sat with others in the living room drinking beer. The victim asked one of the occupants if she could use the telephone to call her mother, and then, taking the phone with her, went into the room where she was sleeping and closed the door after her. 7 A short time later the applicant got up from where he was sitting, walked into the kitchen, and then followed the victim into the bedroom slamming the door behind him. Almost immediately the other occupants in the house heard the victim screaming. One of the males, Mr McPolin, went into the bedroom and saw the applicant lying on top of the victim. He told the applicant to get off the victim but was told by the applicant to leave him alone. Mr McPolin tried in vain pull the applicant away. He then went back to the living room to get help from another male occupant. The two of them returned to the bedroom. The victim was now under the bed and the applicant was over the top of her holding her around the head and neck area. 8 The two men were initially unable to break the applicant's hold upon the victim and they struggled with him for about a minute. They finally managed to prise the applicant's arms from the victim's head and neck area. The applicant then got up and left the premises. It then became apparent that the victim was bleeding about the neck, face and head. The police were summoned and the victim taken to a hospital for treatment. 9 The victim made a statement in which she said that, while she was on the telephone, the applicant kicked in the bedroom door which she had locked when she entered the room. He grabbed the telephone from her and threw it against the wall. The applicant then pushed her in the chest causing her to fall back on to a mattress which was being used as a bed. He then pulled out a knife from the pocket of his jeans. She believed it was a knife from the kitchen. The applicant commenced to slash her with the knife around her chest, face, neck and arms. The applicant had straddled her with his knees across the victim's hips. She tried to hit him with her arms and legs but was unable to make him stop. Eventually she was able to force her way under a bed in the room where she was when McPolin and the other man came to her rescue. 10 Later that night the police arrested the applicant. He maintained initially that he had been at a hotel all evening and that he had sustained some minor injuries in a fight. He refused to participate in a recorded interview after he had been taken to a police station. He remained in custody until 28 April 1999 when he was released on bail. 11 As a result of the attack upon her, the victim suffered multiple lacerations to her head, neck, upper chest, wrist and chin. Most were superficial but there were some which required suturing. In all 20 sutures were required to close wounds on her chin, wrist, chest and scalp. Two lacerations to the chest of the victim were 30 cms in length. 12 The victim returned to Ireland and was placed under the care of a plastic surgeon. A report before the sentencing judge indicated that on 31 March of this year, that is 12 months after the offence, the victim was still bearing visible scars to her chin and chest. A number of them have become hypertrophic, were raised, pink in colour and unsightly. However, the doctor believed that with the use of steroid injections the scars would probably improve in time. 13 The applicant has been unable to give any explanation for his attack upon the victim other than that he was intoxicated. He stated in evidence before the sentencing judge that he had no recollection of the incident and his last memory was of getting a bottle of beer shortly after he arrived home with the victim. A psychologist suggested that the applicant was suffering from a blackout as a result of the alcohol he had consumed that day. The applicant accepted that the state of his intoxication was a major factor in the commission of the offence. 14 The applicant is aged 28 years and he has no prior criminal record apart from a minor matter in Ireland in 1992 which can be disregarded. He came to Australia in January 1999 on a working holiday with the victim. The applicant had been working as a labourer since coming to Australia and was employed at the time of his sentence, working five and a half days a week. 15 There was both oral and documentary evidence from those who have come to know him since he arrived in this country that the applicant is not a violent person even when intoxicated. His sister told a probation officer that the applicant had never shown violent tendencies and that his family were at a loss to explain the offence. There was evidence both from the applicant and others that he was remorseful for the offence. The sentencing judge accepted that he was contrite. 16 The pre-sentence report indicated that the applicant had commencing drinking alcohol at the age of 16. Although in the early years his consumption of alcohol was limited to weekends, gradually the applicant reached the stage where he was consuming alcohol on a daily basis. The applicant admitted to the probation officer that his consumption of alcohol was excessive and that he was prepared to address the problem. 17 The applicant had in fact taken some steps to overcome his reliance on alcohol before he came to be sentenced by Judge Solomon. He had become involved in a course run by the Salvation Army and had resided at one of their institutions. The applicant gave evidence that, although he had not abstained from alcohol since his arrest, he had tempered his intake. There was other evidence to support this assertion. However there was also evidence before his Honour that since the commission of the offence the applicant had on occasions been refused service at a hotel which he frequented because of his level of inebriation. 18 A psychologist, who provided a report upon the applicant for the purposes of sentencing, found that the applicant was not prone to aggressive behaviour and that he had a moderately high predisposition to alcohol abuse. The psychologist also records that the applicant said he was drinking 10 to 12 schooners of beer on Saturday nights and that the applicant did not consider his level of consumption to be excessive. The psychologist believed there was a very low likelihood of recidivism. 19 He has been submitted by Mr Odgers SC that there are two specific errors which can be identified in the sentencing judge's remarks and which resulted in a sentence which he stressed was manifestly excessive. The first is one that Mr Odgers conceded was somewhat technical in that his Honour treated lack of provocation as being a matter of aggravation. 20 During the course of passing sentence his Honour stated: The offence is aggravated by the virtue of the fact that it was unprovoked, that extreme violence was used by the prisoner, and that a knife was used in the attack. 21 I accepted that his Honour was in error in so far as he indicated that the offence was aggravated by the fact that it was unprovoked. Provocation is a mitigating factor and the lack of provocation is neutral. But the fact that the offence was unprovoked meant that this factor was not available to reduce the seriousness of the objective facts which in my view was very substantial indeed. 22 His Honour was clearly required to take a severe view of the facts and treat the offence as an aggravated one within the scope of offences falling within s 35 of the Crimes Act notwithstanding that at the time of the commission of the offence the applicant was intoxicated. It was not just the fact that the applicant used a knife which made the offence serious. The nature of the attack and the injuries which were inflicted required that the offence be treated as an aggravated one. There was a degree of premeditation in that the applicant went to the kitchen to arm himself before going to the bedroom intending to stab the victim. He was not deterred by the fact that the door was locked and he resisted the attempts of others to cease his attack upon a defenceless woman. In my view these features of the offence had such weight that I do not believe that his Honour's sentencing discretion has been shown to have miscarried by his reference to the lack of provocation aggravating the offence. 23 Next it is argued that his Honour erred when he stated that: The prisoner suggests that he had a blackout caused by alcohol. This may explain the attack on the victim but it certainly does not excuse it. 24 It is submitted that his Honour was by that statement indicating that, the fact that the applicant was under the influence of alcohol when he stabbed the victim, was not a matter which could or should mitigate his culpability. This submission should be rejected. 25 It is not uncommon for a court to indicate that a person's criminal conduct is not excused by some matter put forward to explain the offence. This does not mean that the court is necessarily rejecting the relevance of the matter or its significance in determining the appropriate sentence. The court is merely endeavouring to bring home to the offender and others in the community, that a person cannot hope or expect to avoid the consequences of his or her criminal conduct simply because of the presence of some matter which may explain why the criminal conduct occurred. In a case where the matter relied upon is the direct result of the offender's own voluntary conduct, such as self-induced intoxication, it can be readily understood why a court would make such a pronouncement as his Honour did. In my view there was no error in what his Honour said in the passage I have quoted nor did it indicate that he was approaching the exercise of his discretion in an erroneous manner. 26 His Honour is a very experienced judge and I am not persuaded from anything his Honour said or the sentence imposed that he would not have been aware that intoxication may be regarded as a mitigating factor or otherwise relevant when sentencing the applicant in light of the evidence and the issues placed before him. 27 Nor do I believe that Judge Solomon imposed a heavier sentence because his Honour was concerned that the applicant was still apparently drinking alcohol to excess despite having received counselling and assistance in that regard. Obviously his Honour accepted that the offence was a result of the applicant's excessive consumption of alcohol on this occasion and he was concerned that the applicant by continuing to drink to excess was putting himself at risk yet again. 28 This was in my view a relevant factor in his Honour's assessment of the applicant's steps toward rehabilitation prior to sentence and his prospects for rehabilitation in the future. However, the non-parole period specified shows, in my view, that his Honour treated the applicant as having good prospects for rehabilitation despite his continued excessive alcohol consumption. 29 I am unpersuaded that the sentence was in any way excessive. I acknowledge it is a heavy one in light of the applicant's prior good record and non-aggressive character, his plea of guilty and contrition. But in my view the offence was within the upper range of seriousness for an offence of the kind with which the applicant had been charged notwithstanding the fact that he was under the influence of intoxicating liquor and it was out of character for him. It is appropriate to have regard to the nature of the attack, the use of a knife and the injuries sustained by the victim. In my opinion the sentence was not only within the sentencing judge's discretion, it was an appropriate sentence to be imposed in order to reflect the objective seriousness of the offence and the need for general deterrence arising from the fact that the applicant armed himself with a knife in order to assault a female. 30 The non-parole period was a lenient one. It reflected the applicant's prior good character and the rehabilitative steps he had taken to address the cause of his criminal conduct on this occasion. 31 In my view leave to appeal should be granted but the appeal should be refused. 32 DOWD J: I agree with Howie J and the orders will be as proposed by his Honour. ************ 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.