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'." 15. She said that despite his statement she did not believe that he would kill her. Taken as a whole, the victim's statement paints a grim picture of his conduct. 16. The judge was placed in an almost impossible situation. He was handed a bundle of materials, some of which pointed in one direction and some in another. The advocates who appeared did not endeavour to resolve the issues on which there was conflict. The extent of the violence of the applicant and the conduct of the victim were in issue. 17. It was, however, beyond doubt that in the course of the confrontation the victim's elbow was dislocated and her left wrist was fractured and that these required extensive treatment including surgery and she suffers permanent disabilities. 18. The applicant conceded that at the very least, he dragged the victim down the stairs and that she fell a bit; and that he threatened her with a knife and would not let her leave by the front door. 19. The applicant acknowledged the shame and remorse that he felt and that it was his violent conduct which caused the victim's serious injuries and gave rise to the seriousness of the offences. Perhaps it was felt by those at the sentencing hearing that with such admissions there was little point in further exploring the details. 20. The applicant was born on 16 June 1950 and has no previous criminal convictions. The judge accepted there had never been any previous violent conduct between the applicant and the victim, that he had not previously hurt her and that the events of 2/3 January were unpremeditated and erupted without expectation on anyone's part. The applicant has been employed in responsible jobs throughout most of his lifetime. 21. The judge accepted that the applicant was genuinely ashamed of and deeply sorry for what he did to the victim. He was willing and motivated to deal with his offending behaviour. He acknowledged that he needed professional guidance and help and was prepared to pay for it. At the date of sentencing he had already sought that help and wanted to continue with counselling and seeking and receiving such help. He needed to work at the degree of closeness he can tolerate in intimate relationships and how to control and manage self destructive urges and behaviour. 22. The judge found that the applicant was prepared to do everything in his power to address the underlying causes of his criminal and anti-social conduct. The judge found: "... his early pleas of guilty herein together with the other subjective material herein entitled him to the maximum discount an offender is entitled to in this sort of case." 23. The judge did not specify the discount which he had given. The judge stated that the two offences were far too common. He acknowledged that the circumstances of them varied considerably and, I interpolate, both as to the severity of the injuries inflicted and the degree of criminality. 24. The judge accepted the submissions of counsel for the applicant, acquiesced in by counsel for the Crown, that special circumstances existed. The judge concluded: "... while this is a special case it does not on the objective facts even when considered in the light of the strong objective material and the fact that the offender is entitled to the highest of discounts cause this case to fall within the exceptional type of case that does not require me to subject this offender to some form of full time custodial sentence." 25. As has been earlier foreshadowed, the applicant submitted that in proceeding upon the composite statement of facts prepared by the Crown and in failing to make specific findings of fact where the Crown and the applicant disagreed or diverged, the judge had fallen into error. 26. The parties, perhaps for the reasons earlier outlined, did not so conduct the proceedings as to enable the judge to make such findings. The judge was left to do the best he could do on the materials. Neither party wished to engage in a detailed factual contest. It was not seen as useful, given the applicant's admissions. 27. It was also submitted that the judge did not give sufficient weight to the background circumstances of the conduct of the victim antecedent to the incident, which gave rise to the counts including, among other things, the applicant's endeavours to end the relationship and leave the premises and her statement that she would fabricate an allegation of sexual assault against him. 28. It was submitted that given the applicant's general good character, the conclusion was inescapable that what had happened was the tragic culmination of a series of events which produced a loss of self control. The judge acknowledged this was beyond argument on the evidence, that the victim entreated the applicant not to leave - see also her admission in her statement that when she grabbed the applicant the mobile phone fell to the ground and broke and that this marked a change in the applicant's attitude. 29. The applicant submitted that in determining the objective seriousness of the offence, the judge had insufficient regard to the applicant's lack of intent. The judge did not refer to the answers contained in the ERISP and that the applicant did not form any intent to injure the victim by the use of the knife, simply to scare her so she would calm down. 30. The victim said the applicant "... was not brandishing the knife, but rather holding it at me to control me ...". The applicant did not attempt to stab with the knife and the wounds could generally be described as defensive, occasioned during the struggle. 31. The applicant also relied on the judge incorrectly stating the applicant had violently twisted her arm behind her back. It was submitted that while he intended to assault her, he did not foresee or intend to break her wrist and dislocate her elbow. The evidence points to that being the position. 32. Reliance was also placed on the applicant's answer that the worst he thought she would suffer when dragged down the stairs was some bruises. The applicant admitted the commission of the offences and that included the admission of the requisite intent in each instance. 33. The judge acknowledged that the applicant presented with a powerful subjective case. It was particularly strong because of his previous good character, the high regard in which he was held as evidenced by the testimonials and the offence being an isolated one committed when he was under much stress. There was his considerable remorse and his devastation when he realised what had happened and what he had done. 34. The applicant submitted the judge erred in concluding that the applicant had to demonstrate exceptional circumstances so as to justify a penalty of other than full time custody. 35. The judge did not hold that in every instance of these offences there had to be full time custody. What he held was that in the circumstances of the present case with its objective seriousness, there had to be a sentence of full time custody unless there were exceptional circumstances. 36. I do not regard that as a helpful way of approaching the matter. The maximum penalty for maliciously inflicting grievous bodily harm is seven years and that of assault occasioning actual bodily harm is five years. A preferable approach is to take the objective criminality of the offence and the subjective features of the offender and determine what is the correct sentence. This is especially so when provocation can be a mitigating feature. There can be a great variety of circumstances and there are also many other variables. 37. In Regina v Coleman (unreported CCA 20 February 1995) at page 3 Gleeson CJ remarked that he did not intend to suggest that there could never be cases in which something other than a full time custodial sentence would be appropriate for the offence of maliciously inflicting grievous bodily harm. The sentencing statistics also tend to refute the judge's approach. They reveal that only 65 per cent of offenders go to gaol for the subject offence. 38. It was pointed out that the judge failed to mention that these offences, as is the fact, could have been dealt with in the Local Court. It was submitted that the head sentence of three years was manifestly excessive as this meant that the judge's starting point for the offence of maliciously inflicting grievous bodily harm was in excess, and well in excess, of four years. 39. There was a plea of guilty at the earliest opportunity and exceptional remorse and contrition. The Judicial Commission statistics for all offenders indicate that a head sentence in excess of four years is at the top of the range with only 10 per cent of offenders receiving a head sentence in excess of four years. A head sentence must reflect not only the gravity of the offence but also the subjective features. This head sentence does not sufficiently reflect these. 40. I have reached the conclusion that the head sentence was excessive and erroneous and that the correct head sentence was one of two years and three months, having regard to the objective gravity of the offence of maliciously inflicting grievous bodily harm. Any penalty other than a full time custodial sentence was, in the circumstances of the present case, not permissible. 41. I turn now to the non-parole period of ten months. Having regard to the objective seriousness of the offence and notwithstanding the powerful subjective features of the applicant, it is not permissible or warranted to impose a lesser non-parole period than ten months. On re-sentencing I would have been inclined to impose a slightly higher non-parole period but that is not the test. Ten months is at the bottom of the range of permissible non-parole periods. 42. I have not overlooked that this 52 year old man has, until he snapped on this night, lived a useful and crime free life and was valued by those who know him. I do not think that any challenge can successfully be mounted against the sentence imposed on the count of assault occasioning actual bodily harm. No lesser sentences were warranted on that count. 43. I propose the following orders: 1. Leave to appeal be granted. 2. Appeal against the sentence for the offence of assault occasioning actual bodily harm be dismissed. 3. 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. 4. 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. 44. STUDDERT J: I agree. The orders of the Court will therefore be those proposed by Smart AJ. ********** Last Modified: 11/14/2003 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.