New South Wales Court of Criminal Appeal CITATION : Regina v Crowley [2004] NSWCCA 256 HEARING DATE(S) : 20 July 2004 JUDGMENT DATE : 30 July 2004 JUDGMENT OF : Wood CJ at CL at 1; Hidden J at 2; Smart AJ at 3 DECISION : See para 58 CATCHWORDS : Sentencing - Need for counsel to check agreed facts carefully - need for differences between agreed facts and other materials to be resolved adequately - avoidance of complaints of procedural unfairness - Sentences for assault occasioning actual bodily harm manifestly inadequate but sound reasons for Court exercising discretion not to intervene. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Bugmy v The Queen (1990) 169 CLR 525 CASES CITED : Deakin v The Queen 1984 58 ALJR 367 Power v The Queen (1974) 131 CLR 623 PARTIES : Regina v Kim Peter Crowley FILE NUMBER(S) : CCA 60172/04 COUNSEL : (C) B Knox SC (R) R J Button SOLICITORS : (C) S Kavanagh (R) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0367 FILE NUMBER(S) : LOWER COURT Nicholson DCJ JUDICIAL OFFICER : THE COURT OF CRIMINAL APPEAL 60172/04 WOOD CJ at CL HIDDEN J SMART AJ Friday, 30 July 2004 Regina v Kim Peter CROWLEY Judgment 1. WOOD CJ at CL: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed, and with the reasons of Smart AJ. 2. HIDDEN J: I agree with Smart AJ. Although it was entirely appropriate for Nicholson DCJ to have fashioned a sentencing order with an emphasis upon fostering the respondent's rehabilitation, I also am persuaded that the sentences on the assault charges are inadequate to mark their criminality. However, for the reasons identified by Smart AJ, this Court should exercise its discretion not to intervene. 3. SMART AJ: The Director of Public Prosecutions appeals against three sentences of imprisonment imposed by Nicholson DCJ in the District Court on 17 March 2004 on Mr Crowley, the offender, on the ground that the sentences were manifestly inadequate. For the first offence of assault occasioning actual bodily harm to the victim Cornish the offender was sentenced to a fixed term of 6 months imprisonment commencing on 22 November 2003. For the second offence of assault occasioning actual bodily harm to the victim Lawrence the offender was sentenced to a non-parole period of 9 months imprisonment commencing on 22 November 2003, with a balance of term of 3 months. Both these offence were committed while in company of other persons and occurred on 25 April 2003 at Terrigal. On the third offence of enter building with intent the offender was placed on a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for 2 years to be of good behaviour. He was required to accept the supervision of the Probation and Parole Service and all reasonable directions of that Service and to receive from that Service high levels of intervention as to Drug Abuse Treatment and Anger Management. . Vocational training was also to be considered. The judge strongly recommended that the offender be placed in the Young Offenders Program. The offender pleaded guilty to all offences. This appeal is primarily concerned with the assaults. The Assaults 4. The judge regarded the "Agreed Facts' tendered by the Crown as inadequate and relied substantially on statements contained in the Crown brief which was admitted in evidence. That brief fleshes out and elucidates the agreed facts. Neither party called any oral evidence, the hearing proceeding on the documentary materials. The Crown complained that the judge departed from the agreed facts in a number of respects and, in so doing, erred. The Crown contended that in each instance the departure alleged favoured the offender. The judge did not tell the Crown prior to delivering his remarks on sentence that he was proposing to depart from the agreed facts and the Crown complained of a breach of the rules of procedural fairness. I will summarise the facts which were common ground and the alleged departures from the agreed facts. The Crown contends that even on the facts found by the judge the sentences were manifestly inadequate 5. Mr P Cornish had been drinking at the Crowne Plaza Hotel. Shortly after 2am he left the hotel and walked along the Terrigal Esplanade. He was moderately affected by alcohol. There was a group of 15-20 young males near the kiosk of the Terrigal Surf Life Saving Club. 6. The Agreed Facts read: "As Paul Cornish approached the Terrigal Surf Club car park he saw the offender arguing with another male. He heard them discussing their age. Paul Cornish said, 'If you're 16 and he is 19 you ought to have more respect for him.' He continued, 'You ought to have more respect for me because I'm 31.' The offender and another male then began punching Paul Cornish to the head and body. Paul Cornish punched back and eventually the offender and the other male ended up on the ground. Paul Cornish walked away." 7. The judge did not accept this agreed version. He preferred what was in the statement of Mr Cornish. The judge found the following: "As [Cornish] approached the Terrigal Beach car park which is apparently adjacent to the Terrigal Surf Club, he saw a young male person talking to an older male … who was about three or four years older and it appeared to him that those two youths were arguing. They were discussing their age. The younger one was mouthing off at the older male and Cornish said to the younger male …, 'If you're 16 and he is 19 you ought to have more respect for him'. Cornish's statement continues, 'The younger male said to me … "F--- off". I said 'you ought to have more respect for me because I'm 31.' The younger male continued with the obscenities and started walking towards Cornish … when the young person was close enough he punched Cornish in the head. For about 10 to 15 seconds he and the young person exchanged blows. Then someone else joined in. The second person looked to be about 19 years of age. Those two males were assaulting and punching Cornish to his head and to his body. He punched the two males and eventually each of them ended up on the ground hurt. He turned to walk away." 8. The judge made this finding at R/S par [10]: "… the altercation with the 16 and 19 year old resulted in [Cornish] receiving a number of blows to the body and the head. Those blows were received before the offender joined the melee. I am satisfied that he was neither of the two men initially involved." 9. The Crown complained that the judge's departure from the agreed facts led to two further findings: "There is no doubt in respect of Paul Cornish, the offender was not the instigator of the violence. Further his involvement only occurred after a 16 year old and 19 year old had been knocked to the ground by Paul Cornish." (R/S par [21]) and "Mr Cornish himself attributes his injury to no specific persons. He does admit to being hit in the head and body prior to the offender's involvement. That evidence is supported by Ricky Nash who saw the younger man hit Mr Cornish in the back of the head. I am satisfied that occurred before the involvement of the offender. It appears to me that both the evidence of Mr Cornish and of Ricky Nash place two others in a confrontation with Mr Cornish before the involvement of the offender." (R/S par [23]) 10. The Crown complained that the judge's departure from the Agreed Facts and the consequent findings he made led him to understate or minimise the injuries inflicted by the offender on Mr Cornish and their effect. 11. The agreed facts further stated: "Paul Cornish continued to walk across the car park. He turned and saw 6-7 males following him so started to run up the hill. At some stage he stopped running. He was in the middle of the road at this stage. He was struck to the back of the head by one of the males and as he turned around he was kicked and punched by the whole group, including the offender. He collapsed in the middle of the road and was not moving." and "The first incident in the car park was witnessed by Sam Lawrence (victim – count 2) who had been walking home with his friend Denver Goldsteen. Sam Lawrence recognised the offender … Sam Lawrence called 000 on his mobile phone and told the operator of the assault. Sam Lawrence also saw Paul Cornish further punched and kicked in the middle of the road." 12. The judge, after referring to each of the two males ending up on the ground hurt, stated: "[Cornish] turned to walk away. As he walked 20 metres across the beach car park, he turned and saw a half circle of about 6 to 7 people following. They looked between 16 and 25 years of age. … [Cornish] started running north up the hill. He stopped running and started walking. He looked around and saw the same men still following. They were about ten metres behind him. He started walking north again and next thing he recalls is waking up in … Hospital. I am satisfied …that within that group … the offender was to be found." 13. The judge then based what followed on the statement of Sam Lawrence. He and his friend Denver had walked along Terrigal Esplanade. As they crossed the road Mr Lawrence noticed a group of about 15-20 youths standing and sitting near the kiosk of the Terrigal Surf Livesaving Club. The offender was with that group which was boisterous, loud and intimidating. The judge continued: "[Lawrence and Denver] proceeded to walk through the beach car park towards Wamberal. When [Lawrence] got about half way up the hill … he heard the yelling get louder and he turned around and he saw that the same group was near the surf club and that they were surrounding and tormenting a man who I take to be Mr Cornish. They had got him in the middle of the circle and Mr Lawrence could definitely see the offender punching that man. At this point he dialled Triple 0 on his mobile phone … and they continued walking towards Wamberal. A few second later the yelling got louder and they were chasing the man that was being punched in the car park up the hill towards Mr Lawrence and his companion Denver. Mr Cornish who was the man being chased caught up to Lawrence and Denver and they too began to run with the man, with Cornish. He appeared to have blood over his face at that time. The group caught up to him and again surrounded him and punched and kicked him to the ground in the middle of the road." 14. The agreed facts refer to two episodes, one near the Surf Club car park and one a little distance up the hill, with Cornish collapsing in the middle of the road. By contrast the judge has described three episodes, one involving two young males, one in the car park near the surf club and one a distance up the hill. 15. Contrary to the agreed facts the judge found that the offender did not intrude into the melee until after Mr Cornish became involved in an altercation with the two youths. The judge commented "Mr Lawrence, who saw Mr Cornish observes that he was already bleeding at a point in time when it would seem to me the offender may not yet have struck a blow." 16. The agreed facts record: "Paul Cornish was taken to Gosford Hospital. He suffered two lacerations, one to his right eye requiring 4 stitches and one to the back of his skull requiring 7 stitches. He had numerous grazes and bruises to his face, including a black eye." The judge's findings as to the injuries sustained were not materially different. 17. The judge took into account the Victim Impact Statement prepared by Mr Cornish. That reads: "As a result of an assault on myself in April 2003 I suffered the following injuries: A laceration above my right eye requiring three stitches, a laceration to my scalp requiring seven stitches, numerous grazes to the face, black eyes, facial bruising and swelling. The blow I received to the head knocked me unconscious and resulted in a loss of memory from the time of the blow until I awoke in Gosford Hospital. When I came to in the Emergency Room at the Gosford Hospital, it was explained to me that I had been assaulted, knocked unconscious and was to receive some stitches to two lacerations to my head. I was in hospital for approximately six hours receiving treatment. The pain suffered over the next four days was immense. The swelling on my face subsided and after a week the black eyes took two weeks to subside. Now I still receive a stinging painful sensation just to the left of the laceration at the rear of my head. Often this pain is unbearable and I take medication for relief. A 20 to 30mm visible red scar remains above my right eye as a result of my injuries. I also have scarring on the top of scalp and bridge of nose. Prior to the events of the evening in question I was a fit and well person, the father of two children. For the three weeks after the assault I was not permitted to see my children as their mother would not let them see me in my battered condition. I have been a resident of the Terrigal area for approximately 30 years and often attended nightclubs in Terrigal. Since this incident I have not been out in the Terrigal area of a night-time. The events of this night have had a traumatic effect on my life, my sense of wellbeing and my relationship with other people." 18. The judge found that he could not be satisfied that the offender was responsible for any specific injury upon Mr Cornish's face and did not rule out that Mr Cornish obtained some or all the specific injuries "at the hands of the 16 or 19 year olds or others who subsequently joined in the attack." 19. The judge was not satisfied that the offender kicked Mr Cornish while he was on the ground, but he was satisfied beyond reasonable doubt that the offender landed at least two or three blows with his fists on Mr Cornish and, as a consequence, Mr Cornish suffered actual bodily harm either to his torso, neck or facial regions. The judge was unable to determine the specific nature of the actual bodily harm but was satisfied that it involved pain, discomfort and probably bruising and contributed to the traumatic outcome mentioned in the Victim Impact Statement. The judge was not satisfied beyond reasonable doubt that Mr Cornish's loss of consciousness was in any way attributable to any specific act or acts by the offender. 20. The agreed facts, after referring to Mr Lawrence calling 000, stated: "Sam Lawrence and Denver Goldsteen started to run from the group and the offender and 2-3 other males began to chase Sam Lawrence. Sam Lawrence was ankle tapped and fell to the ground, when he turned over the offender was standing over him. The offender started kicking Sam Lawrence twice in the right side of his head and once to the ribs. Each of the other males that were with the offender kicked Sam Lawrence at least once to the ribs. The offender grabbed Sam Lawrence by the throat. The offender and the other males then walked away from Sam Lawrence and got into a white VN Commodore." 21. The judge's findings as to what happened to Mr Lawrence substantially corresponded with the agreed facts. The facts recited that as a result of the assault, "Sam Lawrence received a blood blister on the white part of his right eye, bruising to the head and suspected fractured ribs." The judge additionally noted that the bruising to Mr Lawrence had given him constant headaches. The judge was satisfied that some, if not all of the pain to Mr Lawrence's ribs and the injury to his head including bruising was occasioned by the offender. The judge correctly regarded kicking to the head as extremely dangerous. 22. The judge went to some pains to isolate what the offender did personally. However, it should not be overlooked that he was part of a group attacking Mr Cornish by punching and kicking and an active participant in that group. It is legitimate to look at the overall punching and kicking which took place and the consequent injuries. 23. The Crown correctly relied upon one serious feature of the assault upon Mr Lawrence, namely, he was assaulted for endeavouring to contact the police and secure their attendance to bring to an end a vicious assault upon Mr Cornish. 24. The judge noted as an aggravating feature of the assaults upon both victims that they had been done in company,. Enter With Intent to Steal 25. Just after midnight and in the very early hours of 9 May 2003, the owner of the Club Deli closed that restaurant and checked that everyone had left and the premises were secured. He set the alarm. The offender and a man called Griffiths, whom the judge found to be the leader and recruited the offender, tried to remove a large plasma 42 inch television set from its wall mountings and the restaurant. They were unsuccessful. The judge was inclined to accept the offender's account that he was recruited at a point in time when Griffiths had begun his attempt to remove the television set, that it was a spur of the moment activity, that his co-offender was going to sell it for $1500 and that the offender anticipated receiving half the profits. They were to use a car (probably that of the offender) to carry the TV set away. The owner of the TV set stated that it cost $100 to rectify the damage to the mountings and panels. 26. The judge held that having regard to the objective criminality of this offence and the offender's past history the matter nevertheless fell well within the sentencing discretion of the Local Court. He treated the matter as one that could have been disposed of in the Local Court. 27. The offender was born on 27 June 1982. On 15 June 2000 the Wyong Children's Court required him to perform community service for the offences of robbery in company and assault occasioning actual bodily harm. On 28 March 2002 the Local Court placed him on a bond for 18 months for maliciously destroying or damaging property and ordered him to pay compensation of $1556. On 26 November 2002 Gosford Local Court required the offender to perform community service for maliciously destroying or damaging property and fined him for driving whilst suspended. On 5 July 2003 he was dealt with by the Children's Court for shoplifting. On 28 August 2002 he committed the offence of assault occasioning actual bodily harm and was sentenced on 2 October 2003 to 4 months imprisonment. 28. The offender committed further offences on 29 March 2003 including goods suspected of being stolen and common assault, for which on 2 October 2003 he received concurrent sentences of imprisonment for 4 months. All sentences imposed on 2 October 2003 dated from 23 July 2003. In addition he was given a 9 months concurrent suspended sentence for each of three offences of driving whilst disqualified. He was fined for some other traffic offences. 29. On 20 November 2003 Gosford Local Court sentenced the offender to imprisonment for 4 months commencing 23 July 2003 for common assault. 30. The offender's record between June 2000 and November 2003 contained offences in which he exhibited various degrees of violence. With one exception those offences occurred prior to 25 April 2003. The charge in respect of the last mentioned offence was laid on 28 May 2003. 31. The judge found that the offender had substantial problems with anger. That is not surprising, given his upbringing. 32. The judge has set out in considerable detail the appalling circumstances in which the offender was raised. His mother was aged but 14 when he was born. The offender was subjected to savage beatings by his father and parental neglect. His parents separated when he was aged 12. The offender has lived independently since the age of 15. 33. The offender was expelled from school during Year 8 and has no educational qualifications. 34. The offender has a good work record, always being able to find work quite easily. He has worked in a variety of occupations. He has done well at roof tiling. In the reference of 20 November 2003 of Peter Wills, a director of Wills Roofing Pty Ltd, roof tiling contractors, it is stated: "…Kym Peter Crowley has worked for this company over the past two years and during that time has applied himself in every aspect of his work. Kym is a reliable and hard worker who is always willing to learn. On Kym's return to the Central Coast we are willing to have him return to work for us on a fulltime basis, as we feel he will be an asset to out business." 35. The judge noted that at the age of 16 the offender formed a relationship with a young lady also aged 16. They became very close and he was devoted to her. They separated in June 2002 after more than four years which severely and adversely affected him. The judge found that the offender needed counselling to assist him deal with the breakup in a more socially responsible way. 36. The judge recorded that around May 2003 the offender began to attend and subsequently pursued anger management courses and that he still had some way to go. 37. The offender, who was not adequately looked after by his parents or anyone else began his drug and alcohol abuse at an early age (about 13). By about age 15 he used cannabis more frequently. At age 16 he began taking ecstasy. By age 18 he had increased his level of consumption but it was still modest. He self reported to Alcoholics Anonymous in May 2003 but as he felt he was not obtaining much help there he ceased attending. He undertook three short courses in gaol to help deal with his drug and alcohol abuse. The offender realises he must deal with his drug and alcohol abuse. 38. The judge noted that the offender had considerable support from members of his family and worthwhile friends. He first went to prison on 23 July 2003. He has remained in custody ever since. He was held initially in custody, bail refused, on the enter with intent charge. Subsequently, a sentence of imprisonment of 4 months was imposed for the offence of assault occasioning actual bodily harm. The offences the subject of the sentences under appeal were committed while the offender was on a bond for other matters. 39. The judge held that the offender was at the cross-roads. He was considering taking a different direction and living a better life. The judge had regard to general deterrence. As to personal deterrence the judge was satisfied that the sentences he had in mind (and imposed) together with the offender's earlier sentences was all the personal deterrence needed. 40. It was common ground at the sentence hearing that the offender had pleaded guilty at the earliest opportunity and the judge gave him the full benefit of doing so. The judge set the non-parole period first observing that it was no longer regulated by the overall sentence and that he was applying the principles enunciated in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen 1984 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525. By that I take the judge to mean that he was setting the minimum period for which the offender must be kept in detention in relation to the offence (s 44(1) of Crimes (Sentencing Procedure) Act 1999). 41. The judge correctly declined to find special circumstances because of the bond granted to the offender for the enter with intent to steal offence. I would take a similar approach. 42. Counsel for the offender submitted that this Court should decide the matter on the findings made by the judge and not on the agreed facts. It was submitted that the judge had made his findings on a detailed examination of the Crown statements tendered by it. These statements were fuller than the agreed facts. The question might be asked why the statements were tendered if they were not to be fully used. It was further submitted that this Court could not and should not determine the matter on the basis of the agreed facts. Their accuracy was under a cloud when they were compared with the statements. 43. When the agreed facts along with the Crown statements were tendered and admitted nothing was said about the use to be made of the agreed facts and the statements. 44. The offender contended that if there were unresolved questions of fact or this Court was of the opinion that there had been a departure from the rules of procedure fairness as against the Crown, the correct course was to remit the matter to the District Court for the factual issues to be resolved. This Court is neither a Court of rehearing nor a primary fact finding tribunal. It is a Court of error. It is desirable that the offender be sentenced on a correct factual basis. There was material in the statements tendered by the Crown to support the judge's findings. The offender has been ordered to be released on parole on 21 August 2004. 45. The Crown opposed the matter being remitted to the District Court and submitted that this Court should finalise it and do so on the agreed facts. This would involve putting the statements tendered by the Crown and admitted to one side. That would be incorrect. It may also have the effect of inhibiting the offender's appeal rights. He might wish to challenge any findings of fact less favourable than those of the sentencing judge 46. Agreed facts should always be carefully checked by all parties and their legal representatives, and especially by counsel for an offender. This should not be perfunctory. It is counsel's duty to go through the facts agreed with his or her client. Where agreed facts are presented and the other materials tendered by either side depart from the agreed facts, counsel should draw this to the judge's attention and advise which is to prevail and on what facts the offender should be sentenced. If this does not happen and the judge subsequently discovers that there is a difference he should raise it with the parties and not proceed to sentence until the matter is resolved by agreement or otherwise. Justifiable complaints of a lack of procedural fairness should be avoided. 47. There is insufficient time prior to the applicant's date of release for the matter to be referred to the District Court for elucidation of the factual findings and for the matter to be further dealt with, preferably by the sentencing judge who previously handled the matter. 48. With the issues raised it would be incorrect for this Court to proceed on the basis of the agreed facts. 49. If this Court were to make findings on the agreed facts and not remit the matter it would effectively deprive the offender of a right of appeal against such findings. This is a serious course. 50. In view of the time constraints which, from a practical point of view, preclude this matter being remitted to the District Court to elucidate and resolve the factual issue and the other factors, this Crown appeal has to be resolved on the findings of fact made by the judge. This is not satisfactory because it adversely impacts upon the Crown. This is a situation where there is no satisfactory solution. I have chosen the least unpalatable alternative. 51. Allowing for the limited role of the offender in the Cornish assault found by the judge, the assault was still a serious one and the offender was an active participant. Mr Cornish was punched, kicked and injured. The after effects lasted for a considerable time and Mr Cornish was still suffering at the date of sentence. Imprisonment for a fixed term of 6 months was manifestly inadequate and fails to reflect the gravity of the offence. Nothing Mr Cornish did warranted the sustained and severe attack made upon him. To be kicked and punched by a group while on the ground is terrifying. The shortest non-parole period which could be fixed is one of 9 months. The balance of the term of imprisonment should be 6 months. 52. The assault upon Mr Lawrence was designed to prevent him contacting the police. He too was attacked without justification and subjected to a terrifying and violent experience. While on the ground he received the kicks to the head previously mentioned, those to the head being potentially dangerous. His throat was grabbed. This second serious assault followed almost immediately after the first one. The objective criminality of this second assault was considerable. A non-parole period of 9 months with a balance of 3 months was manifestly inadequate and does not reflect the gravity of the offence. The shortest non-parole period which could be fixed for this second assault was one of 12 months with the balance of the term of imprisonment being 6 months. 53. In both instances I have allowed a discount of 25 per cent for the plea of guilty and the offender's strong subjective features. I have also taken into account the matters specified in s 21A of the Crimes (Sentencing Procedure) Act 1999. 54. It would be incorrect to make the sentences wholly concurrent, although they took place very close to each other and the second assault was a progression from the first. The victims of each assault were different and unrelated in any relevant way. They were separate incidents. Making the sentences wholly concurrent would not adequately reflect the criminality involved. The sentences should be partly concurrent. 55. The penalty of a s 9 bond for 2 years for the offence of enter with intent to steal was lenient and stops just short of being manifestly inadequate. 56. Although the sentences for the two assaults are manifestly inadequate and I have indicated the sentences which would be imposed on re-sentencing, the further question arises whether the Court should in the exercise of its discretion dismiss the Crown appeals. Several factors point towards dismissal. The offender has already served most of his sentence, he has been in custody for over 12 months and is due for release in less than a month. Secondly, on the Crown appeal being lodged the offender's classification was changed and he was moved from the Young Offenders' Programme at Oberon, where he had been since 17 April 2004 to Parramatta Correctional Centre. He has thus served part of his sentence in harsher conditions than otherwise would have been the case. Thirdly, he has done well in gaol with good work and behaviour reports. Fourthly, he is a young man who, despite his weaknesses, had a very poor start in life. He is now at the cross-roads. He has arranged accommodation at his aunt's place at The Entrance and wishes to resume work as a tiler. He has always been a good worker. Fifthly, he has spent over 12 months in gaol and he will have spent 13 months in gaol before he is released. He has received the custodial shock which he needed. 57. It should not be overlooked that the offender will be on a bond to be of good behaviour from his release until 16 March 2006. 58. While I am disturbed at the inadequacy of the sentences imposed for the assault offences and my mind has fluctuated as to the correct result, I have ultimately reached the conclusion on reserving this decision and for the reasons just indicated, that the Crown appeals should, in the exercise of the Court's discretion, be dismissed. ********** Last Modified: 08/06/2004 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.