R v King [1999] NSWCCA 251

New South Wales Court of Criminal Appeal CITATION : R v King [1999] NSWCCA 251 FILE NUMBER(S) : CCA 60537/98 HEARING DATE(S) : 18 August 1999 JUDGMENT DATE : 18 August 1999

PARTIES : Matthew Anthony King Regina (NSW) JUDGMENT OF : Wood CJ at CL; Greg James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0188; 98/11/0189 LOWER COURT JUDICIAL OFFICER : Mahoney DCJ

COUNSEL : S. Odgers L. Lampratti SOLICITORS : T.A. Murphy S.E. O'Connor CATCHWORDS : DECISION : Leave to appeal granted. Sentence quashed. In lieu, for first offence asentenced toa fixed term of twelve months from 10/11/97 to expire on 9/11/98; for the second offence sentenced to a cumulative minimumterm of 15 months from 10/11/98 to 9/2/2000

IN THE COURT OF CRIMINAL APPEAL

60537/98 WOOD CJ at CL GREG JAMES J

WEDNESDAY 18 AUGUST 1999

REGINA v MATTHEW ANTHONY KING

JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal in respect of a total sentence comprising a minimum term of three years with an additional term of six months imposed by Mahoney DCJ in the District Court on 24 June 1998. This sentence reflected two components: (a) a minimum term of eighteen months and an additional term of six months for an offence of malicious wounding of which the applicant was convicted after trial; (b) a minimum term of eighteen months cumulative upon the minimum term for the first offence, and an additional term of six months, for an offence of malicious infliction of grievous bodily harm to a separate victim. 2 Two offences of failure to appear, included in a Form 1, were taken into account. 3 The first offence in point of time, being that in respect of which the applicant was convicted at his trial, occurred in the course of a riot at Coogee Bay on New Year's Eve 1994, involving upwards of 100 people. The victim, Sonny Abberton, was in the thick of the fight which his Honour found involved two separate groups of males, elsewhere suggested to have been "surfies" and "skateboarders". The applicant was sentenced upon the basis that he struck Abberton once with a bottle on the spur of the moment "almost as a matter of self-defence" since his group was outnumbered, and at a time when he had consumed a significant amount of alcoholic liquor. 4 The second offence was connected with the first in the sense that on the following morning, three men, one of whom was Abberton's brother, burst into the home of the applicant's mother, armed with baseball bats and obviously intent on wreaking some sort of revenge. Police intervened to prevent any further violence on this occasion, but it was followed by a continuing history of confrontation over the next sixteen months between the two groups who had fought it out on the streets of Coogee Bay on New Year's Eve. 5 This came to a head on 6 April 1996 when Abberton and some associates arrived at premises that were being visited by the applicant and a friend, Allen McMullen. They were carrying removable steel legs from a barbecue. In the course of a skirmish in the street, McMullen was punched in the face by Abberton after he had swung a length of wood at that man. As Abberton and his comrades were leaving the scene in a van, the applicant came out of the house wearing a motor cycle helmet and carrying two house bricks. He threw one of these bricks at the van and struck a comrade of Abberton who had fallen to the roadway as their van took off. This left the victim with serious head injuries that required major surgical intervention, and left him with very marked disabilities. 6 The applicant had been in custody, bail refused, in relation to the two offences for broken periods, totalling 486 days by the time he appeared for sentence. The nominated commencement date for the sentence of 10 November 1997 was fixed by reference to the time at which the applicant's last period of continuous custody had begun. As there were a further 257 days during which he had been held in custody for these matters, the effective total minimum term imposed was approximately three years and nine months and the total sentence approximately four years and three months. 7 The total sentence is not challenged, the appeal being confined to the submission that the proportion between the minimum and additional terms was, of itself, inappropriate and that his Honour erred in not finding special circumstances. 8 In relation to this aspect of the case, his Honour observed: "As far as rehabilitation is concerned, it has been urged upon me by Mr Skinner that his client is still only 22 years of age and should not be regarded as a lost soul and that his need to be out of gaol and in receipt of supervision more than to be imprisoned suffering punishment gives rise to the appropriateness of a finding of special circumstances. That submission does not find favour with me. I do not propose to find that there are special circumstances in this case, although the submission that his client is in need of the receipt of supervision when he attains his liberty is certainly a matter with which I fully agree." 9 There can, in my view, be no quarrel with the overall term of the sentence. Street brawls and gang fighting are activities which cannot be tolerated. His Honour correctly noted that significant custodial sentences were called for, which conveyed a real element of general and personal deterrence: Henderson (CCA New South Wales 5 November 1997). 10 The offender's prior record did him no service in that it included offences of violence and assault of police, and in that the second offence occurred at a time when he was subject to a recognisance and on parole. Those were matters of aggravation for the reasons explained in Tran (1999) NSW CCA 109; Davidis (NSW CCA 18 December 1986); Vranic (NSW CCA 7 May 1996) and Moffitt (1990) 20 NSWLR 114. 11 I am, however, persuaded that his Honour fell into error in finding that there were no special circumstances. First, the fact that cumulative sentences have been imposed will normally count as a special circumstance: Moffitt at 42, Simpson (1992) 61 A Crim R 59 at 61, Close (1992) 65 A Crim R 55 at 60 and Pollock (1993) 67 A Crim R 166 at 169. 12 The force of the submission in this regard is strengthened by the fact that by the time that the applicant appeared for sentence, he had served an additional period in custody of nine months, thereby effectively increasing the period of accumulation. 13 Moreover, his Honour's assessment that the applicant, who was aged only twenty-two years at the time that he appeared for sentence, was "in need of the receipt of supervision when he attains his liberty", and the recommendation for supervision that was made, in the light of the psychological evaluation referred to in the pre-sentence report, suggest strongly that this was the very kind of case in which special circumstances should have been found. In this regard the report revealed that the applicant had "significant psychological problems and needs ongoing professional help". It also noted that supervision on parole would need to "focus on the applicant's participation in programs aimed at addressing conflict resolution, handling anger and relationship issues". Moreover, the report revealed that since the offences had occurred the applicant had spent a month in the WHO's Rehabilitation Centre, as well as two days at the Salvation Army William Booth Institute, apart from attending some Narcotics Anonymous meetings. 14 The case, accordingly, was one, in my view, where special circumstances were demonstrated. I would grant leave to appeal and quash the sentence imposed. In lieu I would sentence the applicant for the first offence to a fixed term of twelve months, to date from 10 November 1997 and to expire on 9 November 1998; and for the second offence to a cumulative minimum term of fifteen months, to commence from 10 November 1998 and to expire on 9 February 2000. I would impose an additional term of fifteen months to date from 10 February 2000. In this respect I have had regard to the principle of totality, as did his Honour. 15 Taking into account the broken periods of custody served prior to 10 November 1997, the consequence of the sentencing order I propose is that the applicant will be required to serve, for the two offences, a minimum period of imprisonment of approximately three years and will be eligible for release on parole and subject to supervision for an additional term of fifteen months. 16 GREG JAMES J: I agree. 17 WOOD CJ at CL: The order of the Court will, accordingly, be as I have proposed. **********