New South Wales Court of Criminal Appeal CITATION : REGINA v BAUGH [1999] NSWCCA 131 FILE NUMBER(S) : CCA 60798/98 HEARING DATE(S) : 27/05/99 JUDGMENT DATE : 27 May 1999 PARTIES : Stuart William BAUGH JUDGMENT OF : Spigelman CJ at 1; Greg James J at 57; Smart AJ at 58 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0413 LOWER COURT JUDICIAL OFFICER : Hosking DCJ COUNSEL : D N Howard / M Hall (Crown) A M Webb (Respondent) SOLICITORS : C K Smith (Crown) T A Murphy (Respondent) CATCHWORDS : CRIMINAL LAW; sentencing; Crown appeal; assault occasioning actual bodily harm; appropriate sentence; expression of remorse ACTS CITED : Crimes Act 1900 (NSW) DECISION : Allow the appeal; Quash the sentence; Sentence the respondent to a term of two years to be served by way of Periodic Detention commencing on Friday 4 June 1999. IN THE COURT OF CRIMINAL APPEAL 60798/98 SPIGELMAN CJ GREG JAMES J SMART AJ Thursday 27 May 1999 REGINA v Stuart William BAUGH The respondent was convicted of assault occasioning actual bodily harm however the trial judge deferred sentencing the respondent on the condition that he enter a recognisance to be on good behaviour for three years. The respondent had served one year and two days in maximum security before sentence. The assault occasioning the injuries from which the victim died was a single punch by the respondent which caused the victim to fall hitting his head on a concrete floor. Held Looking at the whole of the objective and subjective circumstances, especially the conduct of the respondent in seeking out the altercation administering the blow and the very substantial injury that flowed from this, the final outcome of an effective penalty of one year imprisonment and the risk of further sentencing was manifestly inadequate. Consideration of remorse. The persistence in a false assertion of self-defence is wholly inconsistent with an assertion of remorse even if the Crown indicated it would not accept a plea to a lesser charge. IN THE COURT OF CRIMINAL APPEAL 60798/98 SPIGELMAN CJ GREG JAMES J SMART AJ Thursday 27 May 1999 REGINA v Stuart William BAUGH JUDGMENT 1 SPIGELMAN CJ: In this matter we have a report from the Court Duty Officer and Probation Officer, on the question of Periodic Detention. I take it the parties have copies? 2 This is a Crown appeal against sentence. The respondent was tried before his Honour Judge Hosking QC on two counts arising from the same incident. He was found not guilty on a count of manslaughter and guilty on an alternative count of assault occasioning actual bodily harm. The trial judge deferred sentencing the respondent on the condition that he enter a recognisance to be of good behaviour for three years on the following conditions: (1) he accepts supervision of the Probation & Parole Service; (2) he be provided with a structured course in anger management and undertake special counselling to enable him to plan his future; (3) he undertake specialised counselling for substance abuse. 3 Of considerable significance to his Honour in the sentencing process, was the fact that the respondent had served one year and two days in maximum security in an adult prison before sentence. 4 The offence occurred on 5 October 1996. The victim, Mr Amadeu Dos Santos, was a musician. On the evening of Saturday, 5 October 1996, he went with his family to the Sydney Portuguese Community Club in Marrickville Road, Marrickville, where he played as a member of the Sydney Portuguese Concert Band. Mr Dos Santos left the club later that evening in order to catch the train from nearby Sydenham Railway Station to work in the City. 5 The respondent, then aged 18 years and two companions, Michael Leech, then aged 16 years and Russell Church then aged 18 years, were hanging about Sydenham Station asking people for cigarettes. Mr Dos Santos refused them one and some words passed between him and Leech at the top of the stair landing near the ticket barriers. 6 In his reasons on sentence his Honour does not make any express findings of fact with respect to the altercation in which Mr Dos Santos died. Nevertheless, it appears that at least two acts of assault occurred. The first in point of time was a single punch, obviously of considerable force, by the respondent to Mr Dos Santos, which caused him to fall to the concrete. Thereafter, Leech kicked the deceased in the head. It also appears that it was the respondent who instituted the altercation, by following the deceased and confronting him prior to punching him. 7 In a statement to the police, the respondent alleged that Mr Dos Santos attempted to kick the respondent and to punch him. Self-defence was asserted at the trial but the jury rejected this in finding the respondent guilty of the second count. However, the failure to plead guilty to the second count and the maintenance of a false claim of self-defence is of considerable relevance on the issue of remorse, to which I will presently come. 8 Of central significance in the sentencing exercise, was the rejection by the jury of the charge of manslaughter. As his Honour emphasised in his reasons for sentence, the prisoner could not be lawfully sentenced for causing the victim's death. It may be very difficult for the victim's family to understand that neither Leech, nor Baugh, are to be punished for causing the death of Mr Dos Santos, when plainly one, or other, or in combination, they did cause his death. 9 This Court has been presented, as was his Honour, with a Victim Impact Statement by Mrs Dos Santos, the surviving wife of the deceased. It is a poignant statement and one which emphasises the impact of such senseless random violence as occurred in this case. 10 In the case of Leech, the Crown accepted a plea to the lesser offence of assault occasioning actual bodily harm and did not pursue the charge of manslaughter. The Court has been informed that the Crown indicated that it would not accept such a plea in the case of Baugh and pursued the case of manslaughter against him, of which, in due course, he was acquitted. 11 Judge Hosking had deferred passing sentence on Leech on the condition that he be of good behaviour for a period of three years and accept probation and parole supervision. This occurred in a context in which Leech had spent a period of three months in a juvenile detention centre prior to sentence. This was of some significance to his Honour in sentencing the respondent, by reason of the necessity to maintain some parity between the two sentences, so that the injustice of inconsistent sentences did not occur. 12 In the course of his reasons on sentence of Baugh, his Honour said: "There are, it seems to me, two explanations for the acquittal on the charge of manslaughter. They are either the jury was not satisfied beyond reasonable doubt that the prisoner's act of punching the deceased was unlawful and dangerous, or that the prisoner had not caused the death of the deceased. Either finding of fact involves a generous, indeed benevolent view of the evidence by the jury … That finding of fact was well and truly open to the jury and by no stretch of the imagination could the jury's verdict be described as perverse." 13 These findings by his Honour were not challenged in any way before this Court. 14 The medical evidence upon which the jury failed to be satisfied beyond reasonable doubt on the manslaughter charge, was not placed before this Court. However, the Crown summarised the evidence in submissions to this Court, in a manner not challenged by the respondent as follows: "Dr Duflou, the pathologist called in the Crown case, gave evidence that Mr Dos Santos suffered a fractured skull and brain injury (contracoup) as a result of falling to the footpath and considered this to be the cause of death, although he could not exclude, as a possibility, that a subsequent kick may have contributed to the brain damage. Dr Duflou said: 'Certainly the fall alone was sufficient to cause the brain injury, whether a kick further contributed or not, that is entirely possible but I cannot exclude it, or confirm it in either way.'" 15 On any view, the damage caused by the punch administered by the respondent, was substantial. However his Honour, in this respect, directed himself appropriately when he said: "In determining the matter of sentence, I must be astute to avoid the error of violating the principles in The Queen v De Simoni 147 CLR 383. The prisoner cannot be lawfully sentenced for causing the victim's death. However, the actual bodily harm was a very serious head injury. That is a highly relevant factor." 16 In the process of giving his reasons for the sentence he imposed, his Honour also said: "An overall sentence of the order of two years penal servitude would not have been inappropriate to my mind and it would have been appropriate, finding special circumstances, to divide that into the minimum term of one year and an additional term of one year." 17 His Honour went on to indicate that the minimum term of one year had already been served. Accordingly, his Honour chose the deferred sentence as the appropriate option, apparently basing himself on the assumption that the respondent would have been released after the expiration of the minimum term. His Honour concluded: "Because of the year he has served already, I have determined that the deferred sentence is the appropriate option. That will have the effect of the prisoner being closely supervised, not for one year as the notional additional term to which I have just made reference, if I can so describe it, but achieve supervision for a period of three years." 18 The Crown asserts that the sentence, as imposed, is manifestly inadequate. In its written submissions it advanced two grounds and added a third ground in the course of oral submissions. The first ground was his Honour failed to give adequate weight to the objective seriousness of the crime. The second ground, his Honour gave undue weight to the respondent's "expression of regret". The third ground, being the one referred to in oral submissions, was that his Honour erred in the analogy he drew, by starting off with an overall sentence of two years, divided into a minimum term of one year and an additional term of one year. 19 There are always difficulties in applying the terminology of "weight", in the course of satisfying the high standard which an appellate court must apply, before interfering with the exercise of a discretionary decision. 20 Each of the three grounds to which I have made reference are, in truth, attempts to explain why it was that what the Crown submits was a manifestly inadequate result, came about. The thrust of the submission is, in fact, the manifest inadequacy of the final sentence, namely, a deferral of sentence in the context of the respondent having served one year, in the circumstances that I have described. 21 It has been emphasised on numerous occasions, that Crown appeals are subject to a range of restraints and that it is necessary to identify a form of appellable error, either by identifying some wrong principle, or misunderstanding, or some failure to assess a salient feature of the evidence. See, for example, the often quoted passage in Tate v Bartley (1979) 46 FLR 386 at 388 and the summary of a range of authority in Alpass (1994) 72 ACrimR 561 at 562 to 563. 22 The grounds of failure to give adequate weight to "objective seriousness" and the reference to giving undue weight to an "expression of regret", should be understood in terms of the asserted manifest inadequacy, on the Crown's submission, of the final sentence. 23 As has been emphasised in the authorities to which I have just referred, error may, on limited occasions, appear not from identification of a particular error in the course of the reasoning of the sentencing judge but also that the sentence itself is so excessive, or inadequate, as to manifest such error on its face. 24 In the course of his submissions on behalf of the Crown, Mr Howard referred to two particular aspects of his Honour's reasoning on the question of "objective seriousness". First, he referred to his Honour's references to, "There seems to have been no premeditation" and secondly, he referred to his Honour saying that the respondent "did not intend to seriously hurt the victim". 25 It is not clear as to the sense in which his Honour was using the word "premeditation", or as to precisely what he had in mind when he used the word "seriously". 26 On the subject of premeditation, the Crown directed the Court's attention to evidence that the respondent had followed the deceased in order to engage him in a confrontation. According to the evidence of Church, the respondent had said to him, "I'm going to front this guy about it". 27 However, as counsel for the respondent put it in his submissions, this aspect of the matter is unlikely to have had a major bearing on the sentence. The relevant incident only took a few moments. The degree of "premeditation" was not substantial, even if the finding of "no premeditation" was not warranted. According to the respondent's own record of interview, he did in fact, follow the deceased with the end result of the confrontation. However, that was for a shorter period than some of the other evidence suggested. 28 His Honour, in the reasons for sentence, did not resolve any difference in the evidence in terms of a finding of fact and it is not appropriate that we do so on appeal. However on any view, there was some forethought in terms of confronting the deceased and that was a sufficient factor to weigh significantly in the equation. The incident that occurred, could not be said to be by way of impulse, or in any way provoked. 29 With respect to the second matter, namely the finding that the respondent did not intend to seriously hurt the victim, the Crown points to the admission by the respondent in his electronically recorded interview, that he said to the deceased just before he punched him, "I'll drop ya". This indicates clearly that he did intend to hit him with sufficient force to knock him over. 30 The submission made in this Court has to be understood in the context, as Mr Webb who appeared for the respondent submitted, that the Crown below had in fact provided to the sentencing judge a list the mitigating factors of which the first was, "the prisoner did not intend that the victim should suffer grievous bodily harm, or that he would die". His Honour's reference to lack of intention to seriously hurt should be understood in this context. 31 One must assume that what his Honour had in mind, in the light of the submission of the Crown below, was that there was no intention to cause the kind of injury involved in the fractured skull, which the deceased suffered as a result of falling to the concrete. This can readily be accepted. It was an accurate statement and disclosed no error on his Honour's part. 32 The Crown's submission stated: "The respondent knew that he was on concrete and the effects of 'dropping' on to the concrete in an unconscious form are foreseeably potentially catastrophic." 33 Regrettably that sort of event occurs too frequently where even a single blow, not intended to have serious consequences, does in fact have such consequences. 34 Reference was made before his Honour and in this Court, to the case of Bloomfield (1998) 44 NSWLR 734, which also involved sentencing for an offence under s59 of the Crimes Act, in which a similar sequence of events may be seen to have occurred. At 739 I said: "The critical circumstance is a single blow that led to substantial injuries occasioned to a significant degree by the particular fall, rather than by the impact of the blow. There can be no doubt that the applicant himself must bear the consequence of those injuries". 35 Plainly it was not open on any view (and there is no suggestion that his Honour erred in this regard) to suggest any finding that the respondent did intend to seriously harm the deceased. That would contravene the principles in De Simoni and would in any event, be unacceptable. In my opinion, no error of any character arises from his Honour's reference to the matter of intention to seriously hurt. 36 The next aspect to which I wish to turn, is the error alleged by the Crown to the effect that his Honour gave undue weight to the respondent's "expression of regret". In this respect, his Honour's finding was encompassed in the following passage of his judgment: "Also in favour is his remorse which he expressed at an early stage to the youth worker at the refuge, to quote from the pre-sentence report 'seemingly genuine regret'." 37 In the pre-sentence report dated 12 November 1998, the officer of the Probation & Parole Service says: "He expressed seemingly genuine regret for his offence stating that at no stage had he ever intended his victim to die." 38 His Honour's partial quotation from this extract, of the phrase "seemingly genuine regret", is out of context. The offence for which he was being sentenced was an offence involving actual bodily harm. The regret expressed was about the fact that the victim died, not for his own conduct, or for the injury with respect to which he was convicted. 39 The Court does not have before it the full transcript of the trial. However, the Crown submissions put that the youth worker who gave evidence at the trial and who discussed the matter with him the day after the crime, did not indicate any expression of regret had been made. 40 Counsel for the respondent directed attention to the evidence of that youth worker to the effect that: "Stuart was more concerned than the others about what had happened". He also referred to contact with one other person, which had been made by the respondent, to ascertain the condition of the deceased. He also referred to evidence by one person that: "Stuart was concerned that he may have hurt the guy". 41 None of these matters, including the expression of "concern", were sufficiently unequivocal on the issue of remorse. His "concern" could well have been for himself. However, as counsel for the respondent pointed out, the Crown submissions before the trial judge (being the list of mitigating factors in those submissions) had stated, that amongst those factors was "some initial remorse demonstrated to care workers". So his Honour was entitled to make some reference to remorse, by reason of the way the Crown conducted the case before him. 42 It may be that more appeared by a process of inference in the whole of the evidence before his Honour, than appears from the selected quotations that have been placed before this Court. 43 However, the Crown also drew attention to the fact that there was no plea of guilty by way of an expression of remorse to the alternative charge. Counsel for the respondent indicated that although the Crown had accepted a plea to the lesser charge in the case of Leech, it had at all times indicated that it would not do so in the case of Baugh. That does not however, constitute in any way a qualification on the fact that the respondent is not entitled to any discount for a plea of guilty and particularly, is not entitled to have such a plea of guilty taken into account as a manifestation of remorse. The persistence by the respondent in a false assertion that he acted in self-defence, is wholly inconsistent with an assertion of remorse. 44 There is no expression of remorse going to the offence of which he was convicted namely, the infliction of actual bodily harm, save insofar as this Court should accept that there was some such remorse displayed initially to care workers. Whatever that initial remorse may have been, it was superseded by his persistence in a defence of self-defence at the trial. 45 Counsel for the respondent did however submit that it is unlikely that this matter played any significant role, by way of discount, in the ultimate sentence of the trial judge. Counsel for the Crown did not challenge that submission and appeared, in some respects, to accept that the matter was not of great significance. I think that is probably so. It would not, of itself, in my view, notwithstanding the deficiencies to which I have referred, justify an intervention by this Court. 46 The matter comes down to the question of looking at the whole of the circumstances, both the objective and the subjective circumstances of the case and looking at the final outcome, which in this case is a term of imprisonment of one year in an adult prison in maximum security and thereafter, a risk but only a risk, of further sentencing if the respondent breaches his recognisance during the three year period which has been imposed. 47 There are a number of factors that go to the question of sentence, which are outlined in his Honour's reasons and it is not necessary to set them all out again. 48 The respondent did have a significant criminal record for a range of offences, albeit not involving violence but involving car theft and house breaking offences. Furthermore, the respondent was on conditional liberty at the time, being on probation following the serving of a minimum term for offences of dishonesty imposed by the Children's Court and reduced on appeal by the District Court. 49 His Honour obviously took into account the sentence he had imposed on the co-offender Leech, in which the relevant difference was between the fact that the respondent had served a period of 12 months in custody, whereas Leech had served three months in a juvenile detention centre. However, there were significant differences between the two cases. Leech was only 16 at the time of the offence, the prisoner was 18. Leech did not have a criminal record as significant as that of the respondent. The respondent was on conditional liberty. Leech was entitled to a discount for a plea of guilty. 50 However, the most important difference between the cases, and the factor which determines the outcome of this Crown appeal, was the actual conduct by the respondent in instigating the altercation, striking the first blow and the consequence of that blow. When I say the consequence, I do not mean the consequence in terms of death, but the consequence in terms of fracture and brain damage, which are relevant to the charge of which he was convicted. 51 On the medical evidence before the Court, the primary damage appears to have been occasioned by the fall to the ground. This was a direct consequence of the initial blow administered by the respondent. 52 The maximum penalty for the offence is five years and the respondent has served a period of one year. As I have indicated, his Honour's sentence will be subject to the risk of additional penalty if he offends during the period of three years. However, in the light of the conduct of the respondent seeking out the altercation administering the blow and the very substantial injury that flowed to the victim, in terms of the fracture to the skull and the brain damage occasioned by the fall, caused by the respondent, this mindless act of brutality caused such significant bodily harm, that this is one of those cases in which the sentence of one year and the risk of additional penalty is not adequate. I am saying this, mindful of the element of double jeopardy involved and that the appropriate approach in these matters is to impose the least sentence that should have been imposed at first instance. 53 Of particular significance is that the respondent has now been at liberty for six months, after serving a period of one year's imprisonment for his sentence. Returning him to prison on a fulltime custodial basis, would constitute a significant additional penalty after such a period of release. In the normal course, a longer period of imprisonment would have been appropriate but in the special circumstances of the fact that the respondent has been at liberty for six months in this case and by reason of the special factors that apply in determining these matters on appeal, a sentence of Periodic Detention is appropriate. 54 I indicate that I would not have thought a sentence of Periodic Detention would have been appropriate at first instance but by reason of the change in circumstances and the restraints on an appellate court, it is an appropriate penalty for this Court to impose. 55 Accordingly, I would propose the following orders; (1) allow the appeal; (2) quash the sentence; (3) sentence the respondent to a term of two years to be served by way of Periodic Detention, commencing on Friday, 4 June 1999. 56 Having regard to the 12 months previous custody and the principle restraints which are applicable to Crown appeals, that the respondent is presently and for some months has been out of fulltime custody on recognisance and he is still young, I fix a sentence of two years to be served by way of Periodic Detention on the date that I have indicated and the orders I propose. 57 GREG JAMES J: I agree. 58 SMART AJ: I also agree. 59 SPIGELMAN CJ: The orders are as I indicated: (1) allow the appeal; (2) quash the sentence; (3) sentence the respondent to a term of two years to be served by way of Periodic Detention, commencing on Friday, 4 June 1999. _____________ 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.