R v. Mackay [2003] NSWCCA 87

New South Wales Court of Criminal Appeal

CITATION : R v. Mackay [2003] NSWCCA 87 HEARING DATE(S) : 25/03/03 JUDGMENT DATE : 25 March 2003

JUDGMENT OF : Studdert J at 1; Smart AJ at 2 DECISION : Leave to appeal granted; Appeal against the sentence for the offence of assault occasioning bodily harm be dismissed; Appeal against head sentence of three years in respect of the offence of maliciously inflict grievous bodily harm allowed and that sentence be set aside; In lieu thereof, a sentence of two years and three months be imposed to commence on 22 November 2002 and expiring on 21 February 2005 with a non-parole period of ten months expiring on 21 September 2003.

CATCHWORDS : Serious instances of maliciously inflicting grievous bodily harm and assault occasioning actual bodily harm - head sentence excessive but non parole period correct CASES CITED : Regina v. Coleman unrep, CCA 20 February 1995 PARTIES : Regina Robert Bruce Mackay FILE NUMBER(S) : CCA 60036/03 COUNSEL : Applicant: J. S. Stratton Crown: G. Rowling SOLICITORS : Applicant: D. J. Humphreys Crown: S. E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0462 FILE NUMBER(S) : LOWER COURT Kinchington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60036/03

Studdert J Smart AJ

Tuesday 25 March 2003 R v. Robert Bruce MACKAY Judgment

1. STUDDERT J: I ask Smart AJ to deliver the first judgment. 2. SMART AJ: Robert Bruce Mackay seeks leave to appeal against the length of a sentence of imprisonment of three years with a non-parole period of ten months for the offence of maliciously inflict grievous bodily harm and a concurrent sentence of eighteen months, with a non-parole period of ten months for the offence of assault occasioning actual bodily harm. Both offences arose out of the same incident. 3. The applicant pleaded guilty. A statement of facts tendered by the Crown was admitted without objection, along with other material. The judge found the following facts. On the night of 2 January 2002, the applicant and the victim, who had been in an intermittent but intimate relationship for the previous two years, returned to her three storey terrace after dinner. At times that relationship had been quite stormy verbally and at others quite good. 4. They became involved in an argument about their relationship during which the applicant indicated that he wanted to bring it to an end. Their argument lasted some hours and extended into the early hours of 3 January 2002. 5. Despite her entreaties not to leave, the applicant commenced to pack his clothes in order to leave immediately but was hindered by her. She grabbed him by the arm apparently to stop him making a phone call to the police and caused him to drop the phone. The applicant lost his temper, took hold of her left arm and, according to the judge, violently twisted it behind her back and broke her wrist. 6. These are the acts that gave rise to the offence of maliciously inflict grievous bodily harm. I interpose that while there was evidence the applicant twisted her arm, there was no evidence he twisted it violently behind her back. 7. The applicant punched the victim to the floor on at least two occasions, calling out, "I will kill you now" and a short time later pushed her down the stairs, causing her to fall onto a landing and hit her head. He walked past her into the kitchen, where he obtained a bread knife and grabbed hold of her when she attempted to leave the house through the locked front door, and held the knife firmly to her throat and next to her body. 8. She tried to disarm the applicant and sustained cuts to her left breast, right palm and top of her hand and wrist. The cuts to the hand were superficial. These acts form the basis of the assault occasioning actual bodily harm. 9. He said, "This knife is no good" and "If I can't get you, I'll kill myself." Eventually she escaped to a neighbour's house, the neighbours having been awakened by her screams and the noise and movements in her terrace. 10. The applicant stabbed himself in the chest under the sternum with another knife. The police attended. Both she and the applicant were taken to hospital and received appreciable treatment, she being discharged the following day and the applicant on 7 January 2002. She had to return for further surgery. Unfortunately, her injuries have affected her ability to type and therefore her work and her studies. 11. The applicant complained that the judge had not engaged in a correct fact finding exercise. He had not overtly weighed up the answers contained in the applicant's ERISP nor had regard to concessions made in her statement. The statement of facts principally relied upon the victim's statement. 12. The ERISP was a long one in which the police told the applicant that they were investigating an attempted murder and a serious assault. Many of their questions were designed to elicit evidence of the applicant's intent. These matters emerged from the ERISP: (a) She unbuttoned his shirt and rested her head on his chest. (b) Every time he made a move to go she fired up again. She told him that if he left her she would have him for rape as there would still be sperm there from the morning. He dismissed this threat as her being desperate. When this did not work, she stated that she had a lot of resources and would get him. She had substantial business interests. (c) She went ahead of him as he went up the stairs to pack his clothing. When he told her their relationship would not work and he must leave, she said she was not going to let him leave. It was then he attempted to telephone the police. (d) After she had knocked the telephone out of his hands, the applicant grabbed her by the left wrist and dragged her downstairs. She stumbled and fell a bit, that is down about three or four stairs. He could not recall twisting her arm. Her screaming was deafening. He did not realise at that stage that she had suffered the injuries mentioned. He did not intend to cause them. Obviously he intended to assault her. (e) He did not recall striking her. She flung at him once and he recalled hitting back at her once but he thought that he missed her. (f) He may have said something along the lines of, "I'll do it." (g) He agreed that he went to the kitchen and got a knife. He did this as he could not think of anything else to frighten her enough to let him go. He denied that he put the knife at her throat. (h) The only time he felt matters were out of control was when eventually she was standing in the doorway and said, "I'll let you go" and "My arm hurts". He looked down and could see her arm was twisted. He had not realised until then she was badly hurt. (i) The applicant stated he had not previously had any problems with violence in his relationship. (j) She grabbed the knife. She tried to make a dash for the front door. He grabbed her. (k) On the spur of the moment after he realised that their relationship was at an end and she was injured, he stabbed himself. He thought that there was no point in living. 13. The police officers with their questions went over the events many times trying to ascertain whether a more serious charge was warranted. I have not endeavoured to set out all the nuances in the ERISP. Two major points arise from the ERISP. While not disputing the offences, the applicant asserted that he was not as violent as the victim alleged. Second, she had engaged in conduct which stirred him up. 14. The applicant placed reliance on some parts of her statement, including: "I was trying to keep him from packing, begging him to sleep on it ... I either pushed or grabbed hold of his arm and said, 'Don't pack now'."