R v Howard [2000] NSWCCA 378

New South Wales Court of Criminal Appeal

CITATION : R v Howard [2000] NSWCCA 378 FILE NUMBER(S) : CCA 60238/00 HEARING DATE(S) : 11/08/00 JUDGMENT DATE : 11 August 2000

PARTIES : Regina- Crown Michael John Howard- Applicant JUDGMENT OF : Dowd J at 1; James J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0176 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : Mr RD Ellis- Crown Mr CB Craigie- Applicant SOLICITORS : SE O'Connor- Crown Sydney Regional Aboriginal Corporation Legal Service- Applicant CATCHWORDS : Severity appeal - Assault occasioing actual bodily harm LEGISLATION CITED : Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) CASES CITED: R v John William Crombie [1999] NSWCCA 297. DECISION : 1. Appeal dismissed; 2. Leave to appeal granted.

IN THE COURT OF CRIMINAL APPEAL

BRUCE JAMES J DOWD J

Friday 11th August 2000

N60238/00 REGINA v MICHAEL JOHN HOWARD

JUDGMENT

1 DOWD J: The applicant, Michael John Howard, who is now 21 years of age, entered a plea on 17 March 2000, and was sentenced on 26 April 2000 by Hosking DCJ on a charge of assault occasioning actual bodily harm, contrary to s59 of the Crimes Act 1900, ("the Act"), which carries a maximum penalty of five years imprisonment. The applicant pleaded guilty to the offence and was sentenced to a fixed term of twelve months imprisonment, to commence on 26 April 2000 and to expire on 25 April 2001. 2 The facts are that the victim, Mr Derivieri and a friend, Mr Ruhl, had been to a football match and were returning to Epping Rail Station. On alighting from a taxi, they were approached by a group of young men, including the applicant. One member of the group called the victim and his friend "faggots". There were words passed between the two men and the group. 3 As Derivieri walked down the footpath towards the hotel, members of the group walked beside him, one on either side of him, and a young man on his right stared at Derivieri, causing him to feel threatened by the people closing in around him. After a few more metres, Derivieri looked back to his friend and saw that he was surrounded by five youths who had blocked his friend's path and that they had started to punch him. The man to Derivieri's right than began to punch Derivieri on the right side of his face with his left fist. When Derivieri sought to retaliate and defend himself, he received a punch to the mouth and a sharp blow to the back left side of his head. 4 Derivieri next recollected waking up on the footpath, where he sought the help of his friend and another man who was present. He was told to lie still. He suffered pain in his mouth, his right ear, and his left ankle, and he could see blood all over himself and the footpath. Shortly thereafter, an ambulance arrived and Derivieri received stitches to the right side of his lip, his right eyebrow, the right side of his forehead, and to the back left side of his head. He lost the top half of his bottom tooth and experienced humming in his right ear. His left leg was broken in the region of his ankle, and he had two screws placed at the sides of the fracture. 5 The applicant was arrested, taken to Eastwood Police Station, where he was interviewed by way of electronic record of interview. In that electronic record of interview, the applicant made certain admissions as to his conduct, including the fact that he had kicked the victim in the chest. The applicant was unable to give a satisfactory explanation as to how his knuckles became grazed and his trouser leg had blood on it, as did the shoe that he was wearing. 6 In sentencing, His Honour had before him a statement of facts, which included a statement of facts asserting that the applicant had kicked the victim a number of times before leaving the scene. The applicant's explanation was that he went to help his brother Nathan, and that the victim was in fact already on the ground. It is a somewhat incredible statement that if the victim was on the ground, that he needed to help his brother. 7 In his sentencing remarks, His Honour dealt with the facts fairly generally. His Honour talked about the severity of the incident in general terms. His Honour's words were