New South Wales Court of Criminal Appeal CITATION : R v Neville Luck and R v Leon Amadio [2000] NSWCCA 119 FILE NUMBER(S) : CCA 60551 of 1998; 60600 of 1998 HEARING DATE(S) : 22 March 2000 JUDGMENT DATE : 12 April 2000 PARTIES : Regina v Neville John Luck Regina v Leon John Amadio JUDGMENT OF : Ireland J at 37; Hidden J at 38; Carruthers AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/51/0033 LOWER COURT JUDICIAL Ducker D.C.J. OFFICER : P. Byrne S.C. for the Appellant Luck COUNSEL : D. Stewart for the Appellant Amadio C. Maxwell Q.C. for the Crown SOLICITORS : Ross Hill & Associates for the Appellants S.E. O'Connor for the Crown CATCHWORDS : Sentence appeals - Maliciously inflicting grievous bodily harm with intent - Whether sufficient weight given to subjective circumstances - Common ground that sentences were in the uppper range for the offence. LEGISLATION CITED : Crimes Act 1900, s 33(1), s 61. CASES CITED: R v Bloomfield (1998) 44 NSWLR 734 DECISION : (Ireland J and Carruthers A.J., Hidden J dissenting) In each case, application for leave to appeal granted and appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA60551/98 CCA60600/98 IRELAND J HIDDEN J CARRUTHERS AJ 12 APRIL 2000 REGINA v Neville John Luck REGINA v Leon John AMADIO JUDGMENT 1 CARRUTHERS AJ: Neville John Luck seeks leave to appeal against sentences imposed upon him by his Honour Judge Ducker at the Lismore District Court on 18 September 1998. Leon John Amadio also seeks leave to appeal against a sentence imposed upon him by Judge Ducker at the Lismore District Court on the same date. The appeals were heard together. 2 On 30 March 1998 both applicants were arraigned before his Honour Judge Ducker and a jury of 12 in the District Court at Coffs Harbour. Both applicants pleaded not guilty to a charge under s33(1) of the Crimes Act, 1900 of maliciously inflicting grievous bodily harm upon Darren Michael Somers on 8 July 1995. Mr Luck also pleaded not guilty to a further charge of common assault under s61 of the Crimes Act on Stephen John Tracey on the same date. On 17 April both applicants were found guilty of the count under s33(1) of the Act, and Mr Luck was also found guilty of the common assault count. On that date both applicants were remanded in custody for sentence. The sentence proceedings were adjourned on a number of occasions, with the matter concluding on 18 September 1998. 3 On that date his Honour sentenced Mr Luck in relation to the s33(1) offence to a minimum term of five years penal servitude to commence on 16 July 1998 and to expire on 15 July 2003. His Honour imposed an additional term of two years and six months to commence on 16 July 2003 and to expire on 15 January 2006. In relation to the offence under s61, his Honour imposed a fixed term of three months imprisonment to commence on 17 April 1998 and to expire on 16 July 1998. 4 Mr Amadio was sentenced to a minimum term of four years penal servitude to commence on 17 April 1998 and to expire on 16 April 2002. His Honour imposed an additional term of two years and six months to commence on 17 April 2002 and to expire on 16 October 2004. 5 Despite the serious nature of the offences, the facts may be dealt with in some brevity by reference to his Honour's remarks on sentence. The two applicants were drinking in company with two other men in the Sawtell RSL Club on 8 July 1995. They arrived about lunchtime and thereafter consumed a large quantity of alcohol. Also present in the Club was the victim, Mr Darren Somers. He was a member of the Club and a frequent visitor to the Club. On the night in question he was "somewhat intoxicated". 6 However, his Honour concluded that there was no evidence to show that at about the relevant time he was behaving in an aggressive or confrontational way, but there was evidence which suggested that he was making something of a loud nuisance of himself, no doubt irritating some other members or visitors then in the Club. 7 Mr Tracey, a member of the Club, went to the toilet in the Club premises during the evening. He entered the toilet and noted that Mr Luck was also present standing at one of the two wash basins in the relatively small toilet area. Mr Somers was standing at one of the urinals. Mr Tracey heard an interchange of words between Mr Somers and Mr Luck, initiated by the applicant. According to his Honour, the words used by Mr Luck were surly and aggressive. The words spoken by Mr Somers were spoken in such a low tone that they were not distinctly heard by Mr Tracey. Mr Somers walked towards a door which led into a passageway within the toilet area. At the door he was met by the applicant Amadio. His Honour was satisfied that Mr Amadio spoke to Mr Somers in a very aggressive manner. By this time Mr Luck had moved to a position near Messrs Amadio and Somers. His Honour was satisfied that at least by this time, and possibly from some time before, the applicants were acting in pursuance of a common purpose to attack Mr Somers. Indeed, after a short time Mr Amadio attacked Somers. There was a struggle between these two men and Mr Somers ended up lying across the interior toilet doorway, where he was seen by Mr Tracey to be kicked by Mr Luck. Mr Tracey saw Mr Luck "stomp" heavily on Mr Somers' head on at least two occasions. Mr Luck was wearing boots at the time. According to his Honour, that conduct caused Mr Amadio no concern at all, and, in fact, he set about kicking Mr Somers when he was aware that he had been stomped upon by Mr Luck. 8 His Honour concluded that there was no evidence to establish that Mr Amadio himself caused the grievous head injuries which were sustained by Mr Somers but "there is abundant evidence that there did exist, either spontaneously, or as a result of things that may have occurred, of which the Court has no knowledge, prior to that time, between the prisoners Luck and Amadio that this man should be set upon and brutally beaten". 9 Mr Tracey endeavoured to intervene, saying words to the effect "Stop it, you will kill him". He was then seized by the throat by Mr Luck, who threatened him to keep out of it and to keep his mouth shut. That threat was very effective. Mr Tracey immediately left the area. However, he spoke to one of the Club staff, which caused him to go to the toilet area. Mr Hughes, who knew both applicants, entered the toilet area almost immediately after Mr Tracey had left. Both applicants were still in the toilet area, at that stage, together with another man who had earlier been drinking with them. Mr Somers was then lying bleeding and unconscious on the floor. There was blood around the general area. Both applicants then left the toilet and soon afterwards left the Club, but not before being observed by a number of witnesses. 10 The applicants were, early the next morning, arrested by police officers and they denied the offences. 11 Mr Somers was taken to hospital, where he was diagnosed to be suffering from severe brain damage, as a result of "this unprovoked cowardly and brutal attack upon him by the prisoners", to use his Honour's words. 12 A neurological report, dated 22 April 1998, disclosed that Mr Somers, at that date, still had a significant neurological deficit, particularly in his impaired feeling on the right side and in his incoordination. There is no hope of improvement. This means that he will never be able to work above ground level, and, therefore, has to avoid heights or ladders or scaffolding in his occupation as a painter. He suffers from permanent dizziness and this also inhibits his ability to work on heights. 13 His sexual function is impaired permanently. He has difficulty with memory and concentration and suffers from emotional liability consequential upon the injuries. 14 His Honour said "Mr Somers has obviously suffered gravely serious injuries which will no doubt lead to very considerable economic loss over an extended period. His quality of life has been destroyed". At the date of the offence, Mr Somers was 30 years of age. 15 Having noted that the offence carries a maximum penalty of 25 years penal servitude, his Honour said: "I can see no mitigating circumstances in the objective facts, other than that I feel that the evidence is insufficient to make a positive finding that there was any premeditation between the two prisoners prior to the prisoner Amadio joining the prisoner Luck in the toilet." 16 His Honour also noted that there was no sign of contrition whatsoever on the part of either applicant 17 I turn then to the subjective circumstances of Mr Luck. He was born on 10 September 1963. His Honour was provided with a report dated 18 May 1998 from Mr Allan Andreasen, a consulting clinical psychologist, which dealt with the applicant's prior history and psychological condition. He also had before him a report dated 27 August 1998 of Dr Bruce Westmore, forensic psychiatrist. 18 These professionals were informed by Mr Luck that some six months prior to the subject offences, he was stabbed in the face and neck with a broken beer bottle and "left for dead" in a toilet in Sydney. According to Dr Westmore, the similarities of the attack which Mr Luck himself had experienced and his attack upon Mr Somers were "too close to be ignored". He wondered whether Mr Luck's behaviour may have been caused by some variation of the so-called "Stockholm Syndrome". Individuals who are exposed to extreme and potentially life threatening trauma at the hands of other human beings often develop an over-identification and/or attachment to the aggressor despite the violence perpetrated upon them by the aggressor. However, according to Dr Westmore, this particular case is not a typical or classic example of the Stockholm Syndrome. 19 In essence, Dr Westmore said that the applicant's behaviour in the assault would suggest that he was seriously psychologically disturbed at the time, and he considered that the previous assault which the applicant experienced no doubt played some role in that psychological disturbance. 20 The applicant informed Mr Andreasen that as a result of the assault which he experienced, he suffers from a concern about being threatened and attacked. This, he said, has created problems for him in gaol because he was always looking around and that, in itself, was getting him into trouble. He said he just had a feeling that at any stage "he could really lose it". This was causing him additional stress whilst in custody. 21 The applicant was, a the time of sentence, in a de-facto relationship, with children of the relationship. 22 So far as the applicant Luck's previous record is concerned, it is only relevant to note a previous conviction for assault occasioning grievous bodily harm in 1996. However this offence only attracted a sentence of 300 hours community service. There is no doubt that the Mr Luck was intoxicated at the time of the commission of the offences but, as the jury's verdict declared, not to the extent that he was incapable of forming the requisite intent. In an interview by way of ERISP with investigating police Mr Luck said that at the time of the offences, which he strenuously denied, he was moderately under the influence of alcohol. 23 Mr Byrne SC for the applicant submitted that there was an absence of premeditation, that no weapon was used, the offence was committed over a short duration when the applicant's judgment was impaired by intoxication, and he had no significant prior record of violence. His psychological condition was also stressed, including the difficulties which the applicant was experiencing in custody. 24 The Court was referred to relevant statistics made available by the Judicial Commission, and the Court was referred to what were said to be comparable cases. I have carefully considered these statistics in the light of the principles enunciated by this Court (Spigelman CJ; Sully and Ireland JJ) in Regina v Bloomfield (1998) 44 NSWLR 734. and subsequent cases. 25 There is no doubt that the subject sentences imposed upon the applicant Luck were in the upper-end of the range for sentences in relation to maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. However, when one balances the subjective and objective circumstances it is not possible, in my view, to conclude that the subject sentences were outside the discretion available to his Honour. Further, the remarks on sentence do not, in my respectful view, disclose any error on the part of the judge. 26 His Honour identified the relevant subjective circumstances that have been relied upon so forcefully by Senior Counsel on the applicant's behalf before this Court. Those subjective circumstances are, however, necessarily diminished by the absence of contrition. The applicant does not have available to him the benefit flowing from a plea of guilty. Regrettably there was a considerable delay between the commission of the offences and the trial. This was, however, a factor which his Honour took into consideration. 27 The conduct of Mr Luck in stomping on the victim's head whilst wearing boots is the sort of conduct which revolts any reasonable member of the community. That act of brutality has left the victim, still a young man, with a seriously diminished capacity to enjoy life and to utilise his pre-injury earning capability. 28 Allowing for Mr Luck's psychological and emotional problems, the point must forcefully be made that the degree of criminality involved in his attacks firstly upon Mr Somers and then upon Mr Tracey was very high indeed and called for a sentence in the upper end of the available range. 29 It is quite impossible, when considering Mr Luck's behaviour on the night in question, to elicit any ameliorating factors at all. It is true that he was intoxicated but the objective facts demonstrate that at all times he was well aware of what he was doing. After inflicting these dreadful injuries upon a defenceless man, he took what steps he could to intimidate Mr Tracey, lest he had the courage to inculpate him. The applicants left their victim lying on the toilet floor bleeding and unconscious, taking no steps whatsoever to obtain the medical treatment which he urgently needed. They decamped from the Club and were sufficiently in control of their faculties to walk for some sixty minutes from Sawtell to Toormina. When interviewed by police officers Mr Luck untruthfully denied any involvement in the offences. 30 I would propose that the applicant Luck be granted leave to appeal but that the appeal be rejected. 31 The applicant Mr Amadio was born on 14 January 1961. He is a motorcycle mechanic by occupation. He has no relevant prior criminal convictions. His Honour was provided with a report dated 20 May 1998 from Mr Andreasen in relation to Mr Amadio. Mr Amadio has a long history of alcohol abuse. He also suffers a degree of permanent brain damage as a result of a motor vehicle accident some years ago. He has had a long standing problem with sleep disturbance which, according to Mr Andreason, is probably based in chronic brain injury, and his excessive drinking may have been a response to that problem. 32 Mr Stewart of counsel for the applicant submitted that his Honour failed to give sufficient weight to the severely intoxicated state of the applicant at the time of the offence. He submitted that the intoxication should in this case be taken into account as an ameliorating and not an aggravating factor, because the intoxication caused him to act out of character. 33 Mr Stewart also submitted that his Honour erred in finding that there was no remorse or contrition on the part of Mr Amadio. Mr Stewart stressed the applicant's stable family situation and his prior good character, which was supported by a number of testimonials. He submitted that there was little likelihood of the applicant re-offending. 34 In sentencing Mr Amadio, his Honour said: "I believe that his behaviour was slightly less serious than that of Mr Luck. It was not he who himself kicked or stomped on the unfortunate Mr Somers' head, although, as I have remarked, Mr Luck doing so, he did not find a sufficient reason to himself stop kicking the man who was lying on the floor of the toilet." 35 Again, acknowledging that the sentence imposed upon the applicant Amadio was towards the upper end of the available range, I am not able to conclude, balancing the objective and the subjective circumstances, that the sentence imposed upon the applicant Amadio was outside the discretionary range available to his Honour, or that his Honour's remarks on sentence disclosed any error. 36 I would also grant the applicant Amadio leave to appeal, but dismiss the appeal. 37 IRELAND J: I agree with Carruthers AJ for the reasons given by his Honour. 38 HIDDEN J: I have had the benefit of reading in draft the judgment of Carruthers AJ. I am unable to agree with his Honour's conclusion. As I am aware that I am in the minority, I shall state my reasons very briefly. 39 The offence of maliciously inflicting grievous bodily harm with intent was undoubtedly very serious. The experienced judge who dealt with the applicants was faced with a most difficult sentencing exercise, as his comprehensive remarks on sentence demonstrate. Nevertheless, I am satisfied that the sentences imposed upon both men were more severe than was called for in all the circumstances. As Carruthers AJ has pointed out, the sentences are in the upper range of sentence for this offence. I am satisfied that they fail to give adequate weight to the following features of the case: (a) the applicants' state of intoxication at the time of the offences and the lack of premeditation; (b) the material in the psychiatric and psychological reports, especially those relating to Mr Luck; (c) their generally favourable subjective cases; (d) the long delay in the matter coming to trial, during which time both of them had been of good behaviour. 40 I would reduce Mr Luck's sentence on the major charge to penal servitude for 6½ years, comprising a minimum term of 4 years and an additional term of 2 ½ years. I would affirm the fixed term of 3 months imprisonment on the common assault charge, but would direct that it be served concurrently with the sentence on the major charge. I would reduce Mr Amadio's sentence to penal servitude for 5 ½ years, comprising a minimum term of 3 years and an additional term of 2 ½ years. --o0o-- 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.