New South Wales Court of Criminal Appeal CITATION : R v SHAUER [2000] NSWCCA 91 FILE NUMBER(S) : CCA 60359/99 HEARING DATE(S) : 17/03/00 JUDGMENT DATE : 17 March 2000 PARTIES : REGINA v Valadu Leon SHAUER JUDGMENT OF : Simpson J at 19; Barr J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/41/0063 LOWER COURT JUDICIAL Knight DCJ OFFICER : COUNSEL : Crown: PG Berman Applicant: P Bodor QC SOLICITORS : Crown: SE O'Connor Applicant: Trevor Nyman & Co DECISION : See para 18. IN THE COURT OF CRIMINAL APPEAL 60359/99 SIMPSON J BARR J Friday, 17 March 2000 REGINA v Valadu Leon SHAUER JUDGMENT 1 SIMPSON J: Barr J will deliver the first judgment. 2 BARR J: The applicant stood trial at the District Court Nowra on charges that he maliciously inflicted grievous bodily harm on one victim and assaulted another, occasioning him actual bodily harm. He was convicted and sentenced for the first offence to imprisonment for three years, comprising a minimum term of one year six months and an additional term of one year six months. His Honour found that the applicant's above average prospects for successful rehabilitation, given an extended period of supervision on parole, justified the increase in the additional term at the expense of the minimum term. 3 For the second offence his Honour imposed a concurrent fixed term of one year six months. 4 The appellant appealed against the convictions and sought leave to appeal against the sentences. On 14 October 1999 he abandoned the conviction appeal. 5 On 23 September 1995 a man called Shane Greene went to the Ulladulla Bowling Club with a number of friends. At about 11.30pm an incident took place between the applicant and Mr Brett Houston, one of Mr Greene's friends. A verbal argument turned into a fight and Mr Houston and the applicant were put outside by security officers. There the row continued and Mr Greene hit the applicant. The blow was significant and caused some injury. 6 The applicant went away, determined to have his revenge, obtained a piece of wood described as three by two, somewhere between two and two and a half feet long, went up to Mr Greene and took what was described as a full baseball swing to his head. He hit him across the left side of the face. The left side of the face was opened up and, as it was put, Mr Greene crumpled in a heap. 7 The applicant then turned his attention to Mr Greene's friend, Mr Grant Nakken, who was nearby. He ran towards him, swung the wood and hit him on the head. 8 In imposing sentence, his Honour took into account that the applicant first received a painful injury at the hands of Mr Greene, but described the vengeful attack as vicious and cowardly. His Honour took into account the age of the applicant - he was twenty-four years old - the fact he had no relevant criminal history. His Honour also took into account some delay which had taken place since the jury's verdict, apparently caused by the need to wait for the preparation of the pre-sentence report. 9 It was submitted on behalf of the applicant that the three year sentence on the first count and the eighteen month sentence on the second were manifestly excessive given the objective criminality and the subjective features of the case. 10 Reference was made to part of his Honour's remarks on sentence in which his Honour said this: It was submitted to me that this was a case that could be dealt with perhaps by way of community service order or periodic detention. In my view however, and particularly bearing in mind the fact that this is not a case where there has been a plea of guilty, I would be being weakly merciful were I to adopt any other course other than one of full time imprisonment. 11 Counsel referred to that passage not in order to support any argument that a sentence of full time custody was inappropriate but to suggest that it showed his Honour's view of the case as one finely balanced between one which required full-time custody and one which might properly be dealt with by a lesser sentence, the critical feature being the absence of a plea of guilty. 12 I do not read his Honour's words in that way. 13 It seems to me, however, in all the circumstances of the case the sentence is surprisingly high. In my view if falls outside the range of proper sentencing discretion. There were several favourable features to which his Honour referred, namely that the attack was provoked by a significant blow, that apart from perhaps a small residual scarring the victim of the first attack sustained no continuing injury, and the delay which had taken place between the conviction and the sentencing. 14 There was, however, another very important feature which his Honour did not take into account. For reasons which have not been entirely explained, there was a four year delay between the events out of which the charges arose and the passing of sentence. It is surprising that the case took so long to get on. The Crown has informed the Court from such material as it has this morning that there were a number of prior occasions on which the trial might have got a start, but that for various reasons the trial was adjourned. On another occasion it was not reached. 15 Whatever the merits of the reasons for the various delays, their effect now it seems to me to be this, that a young man of good character who had committed no offences before these events and no others between arrest and sentence, has had to wait four years to be dealt with. 16 In all the circumstances, it seems to me that a much lesser sentence ought to have been imposed. The material before his Honour strongly showed, in view of the matters which I have already canvassed, that the applicant was well on the way to rehabilitation and was the sort of man who would not be likely to re-offend. 17 In the circumstances it is difficult in my view to justify the imposition of an additional term on parole of such length. In my opinion it would have been appropriate and is now appropriate to impose a sentence which does not require the applicant to undergo any period of parole, such is the state of his rehabilitation and character. 18 I would grant leave to appeal. I would quash the sentences and I would impose on the first count a sentence of imprisonment for a fixed term of ten months' imprisonment commencing on 4 June 1999 and expiring on 3 April 2000. On the second count, I would impose a concurrent sentence of six months' imprisonment. 19 SIMPSON J: I agree. The order of the Court will be as proposed by Barr J. ********** 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. 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