REGINA v EUSTICE [2004] NSWCCA 14

New South Wales Court of Criminal Appeal

CITATION : REGINA v EUSTICE [2004] NSWCCA 14 HEARING DATE(S) : 5 February 2004 JUDGMENT DATE : 5 February 2004

JUDGMENT OF : Giles JA at 34; Hulme J at 26; Adams J at 1 DECISION : Appeal allowed; The sentences imposed in the District Court are quashed; In lieu thereof, on the count of assault occasioning actual bodily harm, the respondent is ordered to perform community service for 150 hours commencing on 3 February 2004 and, on the count of assault, the respondent is ordered to perform community service for a further 100 hours. The order also commences on 3 February 2004 but with the community service cumulative upon the preceding 150 hours.

CATCHWORDS : Criminal law - sentencing - assault occasioning actual bodily harm - no question of principle LEGISLATION CITED : Crimes Act 1900 s59(1) & (2) Holloway v McFeeters (1956) 94 CLR 470 CASES CITED : Postiglone v The Queen (1997) 189 CLR 295 R v Lowe (1984) 154 CLR 606 R v Pearce (1998) 194 CLR 610 PARTIES : Regina v Thomas James Eustice (Respondent)

FILE NUMBER(S) : CCA 60331/03 COUNSEL : P Power SC (Crown) R Hulme SC (Respondent) SOLICITORS : S Kavanagh (Crown) S O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0037 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60331/03

GILES JA HULME J ADAMS J THURSDAY 5 FEBRUARY 2004 REGINA v THOMAS JAMES EUSTICE JUDGMENT

1 ADAMS J: The Crown appeals from sentences imposed on 8 August 2003 in the District Court on the respondent in respect of one count of assault occasioning actual bodily harm under s59(1) of the Crimes Act 1900 (the Act) and one count of common assault. 2 The circumstances giving rise to the charges are not in dispute and are as follows: At about 1.30am on 3 March 2002 James Valks, aged 16, Maximillian Kensell, aged 16, and Kristina Hoffman, aged 14, were walking along Clanalpine Street, Mosman when Valks was approached by one Benjamin Daly, aged 18, who knew him. Daly demanded a cigarette from Valks. The respondent, then aged 18, who was known only to Kensell, also approached Valks. Five other unidentified males joined Daly and the respondent. One of these men punched Valks causing him to fall to the ground where he was continually punched and kicked to his upper body. One of the unidentified males then took Valks' backpack which contained clothing and personal items. A silver necklace, bracelet and ring were also removed from his person. Valks managed to get to his feet but when he tried to flee was caught and dragged to the ground where he was kicked and punched by the group of males which included the respondent and Daly. 3 The respondent then chased Kensell, who was standing about 30 metres away, caught him and threw him to the ground causing him to strike his head. The respondent ran away from Kensell, passed Valks, who by then had got to his feet, pushed him over and joined Daly and the other men and left the area. 4 Valks was taken to hospital where he was treated for multiple superficial abrasions to the back of his head, upper back and elbows, welts to the upper area of both arms, a superficial abrasion above his right eyebrow, bruising below his right eye, marked swelling to his right cheek, and a small abrasion to his left cheek. 5 It is important to note not all these injuries were inflicted by the respondent. On the other hand, he was charged with and convicted of an assault occasioning actual bodily harm under s59(2) of the Act which includes in effect, as a circumstance of aggravation, the fact that he was in company at the time of the assault. 6 The respondent, who was arrested on 10 May 2002, denied any involvement in the offence when interviewed by police. He was committed for trial on 21 January 2003. 7 Daly pleaded guilty to one count of assaulting Valks on 14 March 2003. Amongst other things he indicated a preparedness to give evidence against the respondent. Daly also pleaded to an unrelated charge of larceny, being the theft of money and a mobile telephone at a hotel, which occurred a few hours after the assault in question. The learned Magistrate rightly gave both the early plea and the offer of assistance to the authorities considerable weight and sentenced Daly to 100 hours of community service. 8 The respondent's trial was first mentioned in the District Court on 31 January 2003 and fixed for hearing on 14 April 2003. At this stage the indictment contained four counts, two of aggravated robbery, and one of assault occasioning actual bodily harm (under s59(2) of the Act), both of these in respect of Valks, all being in the alternative, and the fourth, common assault of Kensell. On 11 April 2003 the respondent pleaded guilty to the alternative count under s59(2) and the last count. 9 There was some preceding correspondence which was produced before us between the Director of Public Prosecutions and the respondent's solicitors. Although I do not regard this material as being anything more than adding to the chronology, in particular as disclosing anything adverse to the respondent, objection is taken to it by Mr Hulme SC for the respondent, on the basis it was not material tendered before the learned sentencing judge. This objection is well taken and, accordingly, I disregard the correspondence. 10 After several adjournments the sentence hearing occurred on 8 August 2003. It was brief. The agreed facts, virtually the same as set out above, were tendered together with a pre-sentence report. The respondent did not give evidence. 11 The learned sentencing judge noted that the offender was supported in court by his step-father (who had married his mother in March 2003) and with whom he had developed a close and supportive relationship. The respondent's family life had been difficult and disruptive, though he appears to have done reasonably well at school. He had been in casual employment whilst at school and had several jobs thereafter. He was employed at the time of sentence. 12 On 19 February 2002 the Local Court, as I read the record, had found the respondent had committed a common assault but without proceeding to conviction placed him on a six month bond to be of good behaviour. Even so, his headmaster had said that the respondent was not prone to violence. The fact that at the time of the present offence the respondent had not only committed only a short time before another offence of violence and that he was then on a bond to be of good behaviour was, to my mind, a most significant consideration for sentencing him. It was not, however, adverted to by the learned sentencing judge. 13 The Probation and Parole Officer's report concluded as follows – "Mr Eustice impresses as a personable young man whose involvement in these proceedings has had a salutary impact on him. As a result he has disassociated himself from former associates and re-assessed his goals. He is aware that his frequent moves and difficult family circumstances throughout his formative years have had an impact upon his ability to form close friendships. Inquiries indicate that the offender has a positive network of support in the community which includes his mother and stepfather and former school principal. He appears to have the personal resources to seek assistance should he require it." 14 The District Court imposed a sentence of 100 hours of community service upon the respondent. The learned sentencing judge, in brief but adequate reasons, pointed to the plea of guilty as an indicator of contrition (which I think could have been justified on stronger grounds) and justifying an allowance for its utilitarian worth. However, as I have already observed, the plea of guilty was only entered a few days before the date set for the hearing of the trial. 15 His Honour noted that the offender had no record (in one sense this may have been true, in that he had no conviction) and was "comparatively young". This last consideration is undoubtedly a most material one. His Honour rightly gave weight to the fact that the respondent was in employment and had the support of his mother and step-father and concluded – "I am of the view reasonably that in all probability the respondent would not re-offend." 16 His Honour gave some significance, though its extent is uncertain, to the sentence passed in the Local Court on Daly but omitted to mention the fact that Daly had agreed to give evidence for the prosecution at the offender's trial. As I have mentioned, had it not been for this factor I do not doubt the principle concerning parity between co-offenders would have been an important consideration in sentencing this respondent. See R v Lowe (1984) 154 CLR 606; Postiglone v The Queen (1997) 189 CLR 295. 17 However, the agreement to give evidence was a very substantial point of differentiation and, together with the very early plea entered by Daly, to my mind greatly reduced the significance of Daly's sentence as a material factor in measuring the respondent's sentence. Although it is true that the prosecutor did not bring Daly's offer to the sentencing judge's attention, his Honour had the magistrate's reasons for sentence before him. 18 At the same time, it should be noted that his solicitors submitted to the learned sentencing judge that the respondent offered to assist the authorities (I assume in respect of the other unidentified males) but they decided "just not to pursue the matter further". This was a relevant element in the sentencing process and Senior Counsel appearing for the Crown in this Court has confirmed that such an offer was indeed made. 19 It seems to me that the learned sentencing judge, with respect, gave far too much significance to the issue of parity with Daly, for the reasons which I have mentioned. Furthermore, the objective gravity of the crime indicated that the respondent had committed a serious offence. The cowardly attack on these three young people in a public street was not only an attack upon them but upon the right of members of the community to use the public thoroughfares without fear. The respondent, though young, was not a child. 20 Having regard, therefore, to the sentence imposed and to the errors which I have identified, it seems to me that this Court should conclude that the sentence imposed in the District Court was indeed manifestly lenient and that this Court needs to re-consider it. 21 Having already described the facts of the case and the personal circumstances of the respondent, I do not propose to do it again for the purpose of considering what sentence this Court ought to impose. I note, though, it has no material impact, for the sake of correctness, that his Honour sentenced the respondent globally for two charges and, in accordance with R v Pearce (1998) 194 CLR 610, ought not to have done so. 22 An affidavit has been tendered by the respondent in these proceedings which indicates his present personal circumstances, including the fact that he had recently lost his employment and is seeking further employment. I consider that his prospects of employment are good and that this Court should proceed upon the basis that his Honour's assessment that the respondent would be unlikely to offend again was a correct one. 23 Having regard to all the circumstances in the case, I am satisfied that it is not appropriate for this Court to sentence the respondent to a custodial term of imprisonment. To my mind the work which he must undertake pursuant to a community service order is not only more useful from the community's point of view but I think it is more useful for him and, as I have already mentioned, his relative youth is a significant factor, not only in his interest but in the public interest, to be borne in mind and accounted for. 24 Furthermore, this Court has always, because of the principle of double jeopardy, held its hand in relation to the severity of sentences which might otherwise have been appropriate had they been imposed at first instance. 25 Taking into account all the circumstances, I consider that the appeal should be allowed, the sentence below quashed, that on the first count, namely, assault occasioning actual bodily harm, the respondent should be ordered to perform community service of 150 hours and that in addition, in relation to the second count, he should be subject to an order for community service for an additional 100 hours. Because he has already undertaken, as I read the papers, two days community service, I propose that the commencement of those orders should be 3 February 2004. 26 HULME J: The facts in this matter are recounted by Adams J and accordingly I can be brief. The sentencing proceedings in the District Court miscarried. They miscarried in a number of ways. Firstly, although as his Honour was correct to say the principle of parity should be applied by him, he was in error in not recognising that the sentence which had been imposed on a co-offender had been influenced by the co-offender's willingness to assist the authorities to an extent which had no application in the case of the respondent here. 27 Secondly, the proceedings miscarried because his Honour regarded the respondent as having no record. That proposition is misleading unless one also recognises that the respondent had been placed on a bond for a somewhat similar offence as recently as a few weeks before the subject offences. 28 The sentencing judge also said that the plea of guilty indicated contrition. That proposition also was erroneous. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477 – "(An) inference may be made only as the most probable deduction from the established facts". 29 Here there had been some plea bargaining between the respondent, or those representing him, and the Crown. His plea of guilty to two of the four charges presented, and the Crown's acceptance of those pleas in full satisfaction of the indictment, make his plea equally explicable upon the basis he was making the best of a bad situation. 30 That said, there was before his Honour other evidence of contrition, particularly that contained in a Probation and Parole Service pre-sentence report and, although I think his Honour erred in the way he reached the conclusion of a finding of contrition, I do not think the ultimate finding was wrong. 31 Thirdly, the sentence was manifestly inadequate having regard to the respondent's offending and particularly when that offending was in the face of a bond into which he had entered but recently. 32 In all of the circumstances, this Court should interfere, notwithstanding the residual discretion it has not to do so, even if it finds error in the Court below. A sentence which involved a custodial element would have been justified. However, the practice of this Court, when it increases a sentence imposed below, is to impose the minimum which might properly have been imposed at first instance. 33 In these circumstances I agree with the orders proposed by Adams J. 34 GILES JA: I agree with the orders and with both reasons which have been given. Accordingly, the formal order of the Court will be: Appeal allowed, the sentences imposed in the District Court are quashed. In lieu thereof, on the count of assault occasioning actual bodily harm, the respondent is ordered to perform community service for 150 hours commencing on 3 February 2004 and, on the count of assault, the respondent is ordered to perform community service for a further 100 hours. The order also commences on 3 February 2004 but with the community service cumulative upon the preceding 150 hours.