R v Brownlow [2002] NSWCCA 404

New South Wales Court of Criminal Appeal

CITATION : R v Brownlow [2002] NSWCCA 404 FILE NUMBER(S) : CCA 60379/02 HEARING DATE(S) : 1 October 2002 JUDGMENT DATE : 3 October 2002

PARTIES : Regina Peter Austin Brownlow JUDGMENT OF : Meagher JA at 1; Sperling J at 2; Greg James J at 59

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/1164 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : Mr L Lamprati for the Crown Mr D Roberts (Solicitor) for the Respondent SOLICITORS : Mr S E O'Connor for the Director of Public Prosecutions Mark Rumore for the Respondent CATCHWORDS : Criminal Law - malicious wounding - Crown appeal against sentence - no question of principle Crimes Act 1900, s5, s35 LEGISLATION CITED : Criminal Appeal Act 1912, s5D Justices Act 1902, s51A DECISION : 1. Appeal allowed; 2. Vary the sentence by imposing a sentence of two years and 11 months imprisonment commencing on 14 June 2002, with a non-parole period of 11 months expiring on 13 May 2003; 3. Direct the release of the respondent on 13 May 2003; 4. Impose a condition on the parole order that the respondent be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period 14 May 2003 to 13 May 2005.

- 11 -IN THE COURT OF CRIMINAL APPEAL 60379/02

Meagher JA Sperling J Greg James J

Tuesday, 1 October 2002 R v Brownlow Judgment 1 Meagher JA: I agree with Sperling J. 2 Sperling J: This is a Crown appeal brought pursuant to s5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent, Peter Austin Brownlow, by O'Reilly DCJ on 14 June 2002. The respondent had pleaded guilty on 14 September 2001, at Penrith Local Court, to two counts of malicious wounding, being an offence against s35(a) of the Crimes Act 1900 for which the maximum penalty is seven years imprisonment. The respondent was thereupon committed for sentence to the District Court pursuant to s51A of the Justices Act 1902. 3 The respondent was sentenced on each count to 15 months imprisonment to date from 14 June 2002, with a non-parole period of five months, the sentences to be served concurrently. 4 The sentencing judge took into account a period of approximately three and a half weeks in custody before the respondent was released on bail. 5 His Honour also gave the respondent the benefit of a 25 per cent discount for the utilitarian value of the plea of guilty. 6 Section 5D of the Criminal Appeal Act 1912 provides that, on a Crown appeal, this court may, in its discretion, vary the sentence and impose such sentence as to the court may seem proper. 7 The principles relating to a Crown appeal are well settled. They include the following. The right of the Crown to appeal is an exceptional power, to be exercised rarely, and in order to allow the court to lay down sentencing principles. The appeal will only be allowed if the sentence is manifestly inadequate. This must amount to an error in the exercise of discretion by the sentencing judge. It is not sufficient that the appellate court would have imposed a more severe sentence. Notwithstanding that the appellate court might be satisfied that the sentence is manifestly inadequate, it has a discretion whether to intervene. The appellate court will normally only substitute a sentence which is less than would otherwise be appropriate on the basis of double jeopardy. This may result in the appellate court not intervening in the exercise of its discretion. 8 The facts of the case may be summarised as follows. The respondent and his girlfriend Michelle Wilkinson had been involved in a five year de facto relationship. At the time of the offence, they had recently ended their relationship, with Wilkinson commencing a relationship with Alexander Kosic. Ms Wilkinson and Mr Kosic lived together at 54 Francis Street, Richmond. 9 Shortly after 7 pm on Wednesday 1 November 2000, the respondent and co-offender Terrence Hill (who was also to became a victim), left the respondent's home in Mt Druitt to go to Ms Wilkinson's home to collect money owed to the respondent. Before leaving home, the respondent armed himself with a machete (the blade being about 14 inches long). Mr Hill advised the respondent to leave it behind, however, the respondent secreted the machete in a toolbox on Mr Hill's utility. The respondent and Mr Hill travelled to the Overlander Hotel at Kingswood, where they met up with the other co-offenders, Matthew Dimmock, Mark Evans and Jason Sharpe. Further discussion about attending Ms Wilkinson's home took place at the hotel. 10 Mr Evans subsequently armed himself with an aluminium baseball bat. 11 The five men then travelled to 54 Francis Street, Richmond in Mr Dimmock's Commodore sedan, arriving at about 9.45 pm. On the way, Mr Hill discussed starting a fight once they arrived, and "hurting people". 12 Upon arrival at the premises, Mr Hill and Mr Sharpe approached the front door whilst the respondent, armed with the machete, and Mr Evans, armed with the aluminium baseball bat, hid behind shrubs near the front of the house. On the front porch, Mr Hill and Mr Sharpe engaged Ms Wilkinson and Mr Kocic in a conversation about money allegedly owed. 13 The respondent then came forward swinging the machete in a circular motion and saying "You're going to pay for what you did, and if I can't have you no one can". A brawl then began. 14 Duane Hodges, a friend of Mr Kosic and Ms Wilkinson, was also present in the front yard. During the brawl, the respondent struck Mr Hodges to the left elbow and abdomen. 15 The respondent, while still holding the machete, grabbed the co-offender Mr Hill by the shoulders in order to pull him away. In the process of doing so, Mr Hill suffered a serious laceration to his left ear lobe, which was almost severed. 16 The respondent and Mr Hill left the scene on foot and were picked up by Mr Hill's mother from Richmond Railway Station. Mr Dimmock remained at the scene, whilst Mr Evans and Mr Sharpe were apprehended by police a short distance away. Mr Hill was arrested at Nepean Hospital on Thursday 2 November 2000, where he was having surgery on his ear. 17 On Friday 3 November 2000, the respondent surrendered himself at Windsor Police Station. He was arrested and electronically interviewed. He made admissions as to arming himself with a machete, and having it in his possession during the brawl. He denied using it to injure anyone. 18 The injuries caused by the respondent were as follows. Mr Hodges suffered a superficial laceration to his abdomen and a large compound wound to his left elbow with a fracture of the left olecranon. His treatment included lavage and debridement of wounds. The abdominal wound required eight stitches whilst the left elbow wound was debrided, explored and an open reduction and tension band wiring of the olecranon was carried out. Mr Hodges has suffered a permanent two per cent loss of movement in his arm. As a result of the injuries sustained, he was unable to work for ten months and had incurred substantial medical expenses. 19 Mr Hill suffered an 8 cm laceration to the left elbow – to subcutaneous fat only – and a laceration to the left ear lobe. The arm wound was cleaned and sutured in the emergency department, and the wound to the left ear was surgically repaired. Mr Hill had made a full recovery. 20 As to the respondent's state of mind, his Honour said He [the respondent] says that he did not deliberately inflict the injuries and that by his plea that must be so. It cannot be assumed that he had any intention to cause injuries of this nature. 21 The finding as recorded is not clear. However, at the least, it is to be recognised, that there was no finding that injury was deliberate. That was conformable with the evidence which did not show that the respondent intended to strike Mr Hodges with the weapon. There was positive evidence that the injury to Mr Hill was unintentional. 22 "Maliciously" is an element of the offence under s35(a) of the Crimes Act 1900. Section 5 of the Act provides that an act done without malice but with indifference to human life or suffering and without lawful cause or excuse, or done recklessly or wantonly, is to be taken to have been done maliciously. The facts do not rise higher than indifference and recklessness in this case. 23 The respondent did not give evidence at the sentencing hearing. 24 The evidence relating to the personal circumstances of the respondent was as follows. 25 The respondent was 24 years at the time of the offences. 26 Two reports were tendered on behalf of the respondent. A psychologist's report dated 25 March 2002 was prepared by Anna Robilliard and was tendered on sentence. The report stated that the respondent at the interview showed no sign of thought disorder or significant mood disturbance. He was born on 31 July 1977 being aged 24 years at the time of interview. The respondent had one sibling, a married sister to whom he was close. His father was killed in an accident at work when the respondent was aged four and a half years. The death of his father had had a lasting impact on the respondent who very often thought about his father and missed him. After his father's death, the respondent's mother formed a relationship with a man 20 years older than herself. This relationship finished when the man departed for Queensland. When the respondent was aged 14 years his mother formed a relationship with a man who proved violent and a heavy drinker. That man and his son lived with the respondent and his mother for three unhappy years. The relationship broke down. Later, the respondent's mother took up with another man and this relationship has proved successful. 27 At primary school, the respondent was considered to be hyperactive. At high school he appears to have mixed with "the wrong crowd" because he began truanting regularly. He left school at age 15 years, being part way through year nine. 28 The respondent began work at a wrecker's yard and then worked at a service station. He showed an interest in cars and mechanical work. He next worked with a carpenter refurbishing shops. He did this work for several years. The respondent ultimately lost this job because his girlfriend Ms Wilkinson with whom he had a relationship which was broken off in August 2000, would visit him at work often, "sit around" and also telephone him constantly. His employer found this intolerable and the respondent lost the job. 29 The relationship with Ms Wilkinson lasted about five years. The respondent was aged 19 years and she was aged 15 years when they met. Whilst they lived in rented accommodation, other young people would come to their place to share "pot". The relationship deteriorated and they would argue. Ms Wilkinson developed anorexia. She needed medical and other treatment. She became unstable and the respondent had to look after her. She continued to take drugs. 30 When the respondent turned 21 years, he received an inheritance of nearly $100,000. After buying a car, he later allowed Ms Wilkinson to take money out of the account and the balance fell to about $32,000. In 1999 she spent about $10,000 of the money on drugs. The two had broken up in August 2000 and the respondent said that Ms Wilkinson agreed to pay him back $30,000 that she owed him. 31 The respondent described himself as a "real mess" at that stage. He was using alcohol and drugs in order to cope with life. Consequently, at that stage, he regarded himself as unfit for work. 32 He began using alcohol in his early teens. Occasionally two of his uncles would encourage him to drink large amounts. At the end of his relationship with his girlfriend, the respondent began to drink "fairly constantly". On occasions, he had drunk two bottles of bourbon a day, plus half a carton of beer. Sometimes, he also used amphetamines and cannabis. However, after he was charged with the present offences and released from custody he reported being able to contain his drinking to having the "odd drink". 33 The respondent had said that he began using cannabis at the age of 11 to 12 years but, by his mid teens, this using had become a regular habit. During his relationship with his girlfriend, he had begun using amphetamines and associating with teenagers who took drugs. A significant amount of the respondent's inheritance was spent on drugs. The respondent said that when he separated from Ms Wilkinson, his drug taking increased significantly in conjunction with his alcohol intake as mentioned earlier. The respondent said that, since being charged with the present offences, he had stopped using drugs and had not been tempted to resume. 34 Tests administered to the respondent showed him to be in the below average range of intelligence. No entrenched anti social attitudes were in evidence. It was noted that he had become involved with a youth mission associated with the Catholic Church. A cautionary note was sounded as to the respondent's propensity to develop dependent relationships. 35 The respondent admitted to the psychologist that, in the relevant incident, he was holding a machete, but claimed that he did not deliberately inflict injuries on the victims. He was reported to be remorseful over the offences, and regretful of the injuries to the victims. 36 It was reported that the respondent was highly motivated to comply with an alternative to a custodial sentence. It was said that the three and a half week period in custody following his arrest had had a profound impact on him. It was suggested that he would benefit from supervision by the Probation and Parole Service and psychological counselling. 37 The respondent appears not to have told Ms Robilliard that he had resumed the relationship with Ms Wilkinson, as mentioned in the Probation and Parole report. 38 A Probation and Parole Service pre-sentence report was prepared on 8 May 2002. The respondent had earlier been subject to supervision by the Probation and Parole Service in respect of an offence of maliciously destroy property in April 2001. His response to supervision was described as unsatisfactory, the respondent failing to report as required. He had not commenced "anger management" counselling as directed. However, he had remained gainfully employed and apparently avoided criminal associations and claimed to have desisted from illicit drug use and minimised his use of alcohol. 39 The respondent said that he maintained regular contact with his mother and older sister. He revealed his resumption of the relationship with his former girlfriend, and that they were expecting the arrival of twins in September 2002. He had at first said that he was not in a relationship of any kind. 40 The respondent's current employer spoke highly of his skills and abilities. The employer was apparently very supportive of the respondent and mentioned the possibility of advancement depending on the outcome of the sentence proceedings. 41 The respondent had denied an intention to harm anyone during the incident on 1 November 2000, and claimed that he only had possession of the machete for his own protection, believing that there were aggressive males at the place where he and his co-offenders had gone. He claimed that the injuries he had inflicted were accidental. He denied swinging the weapon and being aware that serious injuries had been inflicted. He had not learnt of this until later. He said that had he intended to inflict injury there would have much more serious injuries inflicted, because the machete was capable of causing very serious injuries. 42 The reporting officer described the applicant as "guarded" during the interview with him. The respondent had not satisfactorily explained his failure to reveal his true current circumstances in relation to Ms Wilkinson earlier, or his earlier failure to co-operate with the parole service, although it was indicated that he had maintained worthwhile employment and appeared to have good prospects in this regard. The respondent was considered to be minimising his role in the offences, the version he gave being at odds with the material placed before the Court. (I would interpolate that the respondent's recollection of events as they truly occurred is likely to have been impugned by alcohol consumed at the hotel en route.) 43 The respondent's employer, Michael Organ, testified that he had asked the respondent to come work for him in his firewood distribution business after seeing him working for a concreter in his yard. He spoke very highly of the respondent as an employee who showed great versatility and skill and in whom he had great faith. He said that he needed the respondent "desperately" in order to run his business. 44 Mr Organ stated that the respondent and his girlfriend lived in his Cooper Street house in Katoomba and that he had stringent rules in relation to the house, that is, no smoking, no drinking and no drugs. Mr Organ said that he was a member of Alcoholics Anonymous and that the respondent had voluntarily attended several meetings with him. 45 Mr Organ stated that, if the respondent received a full-time custodial sentence, he would have to be replaced, but that he would offer him the position again if it was available after the sentence had been served. 46 The respondent's mother, Lynette Brownlow, gave evidence that, during his three weeks in custody, the respondent appeared upset and did not handle it very well. When the respondent was released on bail, he resided with her. In that time, she noticed a change in the respondent in that he looked after himself and no longer used drugs or alcohol. He looked for work and tried to get his life back together. 47 In relation to the offence, Ms Brownlow stated that the respondent had told her that he was very sorry for what he had done. 48 Ms Brownlow had recently become aware that the respondent was back with his girlfriend and that they were living together at Katoomba in premises belonging to the respondent's employer. She stated that they were "pulling themselves together" and were improving. 49 The foregoing account of the evidence before the sentencing judge is taken from the Crown's written submissions. The Crown's resume of that evidence was not queried on the hearing of the appeal. 50 The objective facts of the case involved a number of aggravating factors. The attack involved the use of a weapon capable of inflicting death or very serious injury. It was a planned attack, rather than something done on the spur of the moment. Although there was the underlying emotional element of the previous relationship, which appears to have inflamed the situation, the objective of the respondent's visit was a calculated attempt to recover what the respondent regarded as money owing to him, by threat or force. The attack was carried out in company, outnumbering those against whom it was directed. One at least of the respondent's companions was armed with a baseball bat. The attack involved intrusion onto private property. On the other hand, sentencing must proceed on the basis that the injuries were inflicted with indifference and recklessly, rather than intentionally. Nonetheless, this was a very serious offence. 51 On the other hand, there were weighty subjective factors in mitigation. The respondent was born on 31 July 1977. He was 23 years of age at the time of the offence. He was of less than average intelligence. Since the offence, he had turned over a new leaf. He had ceased using drugs and had ceased excessive use of alcohol. He had resumed a settled relationship with Ms Wilkinson and had accepted the responsibilities of prospective fatherhood in relation to the twins with which she was pregnant. He was a diligent employee who had earned the respect and support of his employer. 52 As to contrition, the sentencing judge said, I do not think we can talk much about contrition in this particular case. 53 There was scant evidence of contrition, the respondent not having given evidence on oath at the sentencing hearing. I take the sentencing judge to have made no finding in favour of the respondent in relation to contrition. Nor would I. 54 The respondent was not entitled to consideration as a person with little or no criminal record. In 1999 he was convicted of a serious driving offence, namely, driving with low-range PCA. In the same year, he was convicted of larceny, and in the year 2001, he was convicted of maliciously destroying or damaging property. In relation to each of the first two offences, a fine was imposed. In relation to the third offence, he was placed on a good behaviour bond under supervision. 55 The sentencing judge found special circumstances by reason of the respondent's age and the fact that this would be his first custodial sentence. The respondent's steps in his own rehabilitation also qualified for consideration in that regard. 56 Were I sentencing the respondent at first instance, I would impose a sentence of three years imprisonment after allowing a 25 per cent discount for the plea of guilty, with a non-parole period of two years. This is a Crown appeal. I would, in the exercise of the court's discretion, reduce the non-parole period to one year in deference to the principle of double jeopardy. 57 This result is consistent with the sentences imposed on the respondent's co-offenders. Only Mr Hill warrants mention in that regard. Although Mr Hill's culpability was not as great as that of the respondent, it was substantial. Mr Hill was sentenced to 18 months imprisonment with a non-parole period of 12 months. That is a heavier sentence than that proposed for the respondent. But Mr Hill did not plead guilty. And there was no double jeopardy constraining the sentencing judge in that case. Then there are the strong subjective considerations in favour of the respondent in the present case. 58 Allowance is to be made for the period of approximately one month's custody prior to sentence. I propose the following orders: