REGINA v PITT [2003] NSWCCA 408

New South Wales Court of Criminal Appeal

CITATION : REGINA v PITT [2003] NSWCCA 408 HEARING DATE(S) : 16/12/03 JUDGMENT DATE : 16 December 2003

JUDGMENT OF : Sully J at 1; Greg James J at 18; Adams J at 2 DECISION : Leave to appeal granted; appeal dismissed

CASES CITED : Veen v The Queen (No 2) (1988) 164 CLR 465 R v Fernando [1999] NSWCCA 66 PARTIES : The Queen (Respondent) David John Pitt (Applicant) FILE NUMBER(S) : CCA 60308/03 COUNSEL : P Power SC (Respondent) S Kluss (Applicant) SOLICITORS : C K Smith (Respondent) R Hill (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0006 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60308/03

SULLY J GREG JAMES J ADAMS J TUESDAY 16 DECEMBER 2003 REGINA v DAVID JOHN PITT JUDGMENT

1 ADAMS J: Frederick Charles Pitt and David John Pitt were both found guilty following a trial for the crime of maliciously inflicting grievous bodily harm upon Rodney John Wortley with the intent to do so. They were both sentenced by the trial judge Gibson DCJ on 27 June 2002 to a sentence of eight years with a non parole period of five years, although the dates upon which the sentences commenced differed for reasons it is unnecessary to discuss. 2 David John Pitt seeks leave to appeal against the sentence imposed upon him. The facts are not in dispute and may be fairly summarised from the learned sentencing judge's reasons for sentence. On 14 June 2000 there occurred an incident in which a beer bottle was thrown through the window of a house, the occupants of the house came outside to discuss the matter and shortly after, when a number of persons had gathered, a brawl started. Amongst the persons participating in this violence was the victim, Frederick and David Pitt and David and Peter Murray. The victim was kicked whilst he was on the ground, a rock was dropped on his head, he was kicked in the head by one of them. He suffered a fractured skull and brain damage described by his Honour as "not serious" . As the victim's cognitive reasoning and memory were adversely affected, the injury must be regarded as a serious one, though it may not have been a particularly serious form of brain damage. 3 The applicant was sentenced upon the basis that his intent to inflict grievous bodily harm was not premeditated but one that was formed "during the heat of the battle" and whilst the victim was being attacked. I take that to mean that, as the matter was put to the jury, the question in respect of this element was whether the applicant intended that grievous bodily harm was to be inflicted, whether or not he himself did the physical act that encompassed this end. There can be no doubt that this offence objectively is a most serious one: it carries a maximum term of imprisonment of twenty-five years. These facts were found also against the applicant's brother Frederick. 4 Extensive reports were tendered on behalf of the Pitt brothers, they showed a deprived and troubled upbringing and in David Pitt's case especially, significant intellectual difficulties which may well have been contributed to by alcohol abuse. 5 At the time of the commission of the offences David was twenty-five years of age and Frederick was aged thirty-three. Regrettably, and significantly differently from the Murrays, both brothers had lengthy records involving crimes of violence. The reports about them indicated that they were not good candidates for rehabilitation and, indeed, David Pitt appears to have had no remorse or contrition for the crime that he committed. 6 Their backgrounds undoubtedly justified some amelioration of penalty. On the other hand the consideration that there was only a slim possibility that either man would be rehabilitated suggested a heavier penalty. As was said in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ there are occasions when the purposes of sentence, on the one hand deterrence and on the other rehabilitation, to omit others immaterial to this discussion, point in different directions. In my view this was the case with both the Pitt brothers. 7 Ms Kluss, counsel for the applicant, does not submit that, considered by itself, the sentence imposed on her client was excessive. However, she submits that it should have been somewhat less than that which was imposed upon Frederick and, by comparison with the sentences imposed upon the Murray brothers, was such as to give rise to a reasonable apprehension of unfairness. 8 I now briefly turn to the convictions and sentences suffered by the Murray brothers. David Murray, who was aged nineteen at the time of the offence also came up for sentence before Gibson DCJ. He HAD pleaded guilty on 11 March 2002 to the charge of maliciously inflicting grievous bodily harm upon a different victim to the person in respect of whose injuries the Pitts were convicted, although the victim in the Murrays' case was injured in the course of the same melee. David Murray was sentenced on 22 March 2002 to a fixed term of eighteen months imprisonment. No non parole period was imposed because, as I understand it, he was at the same time convicted of a more serious crime, the sentence for which on the fixed term was accumulated and a non parole period was fixed. 9 It will already be obvious that David Murray was significantly younger than the applicant. The crime of which he was convicted was significantly less serious, it carried a maximum term of imprisonment of seven years, it did not involve proof of intention to cause grievous bodily harm. The intention with which a crime is committed will often be a crucial factor in measuring the extent of culpability. Objectively speaking, that is quite apart from any subjective considerations, there can be no doubt that David Murray's crime was significantly less serious than the applicant's. He made full and frank admissions. He was treated by Gibson DCJ rightly, in my view, as having no prior convictions. He was remorseful. He was given, also rightly in my opinion, an allowance of twenty-five percent for the utilitarian value of his plea. The injuries which were inflicted upon the victim in respect of which David Murray was convicted were described by his Honour as "severe injuries from which he has basically recovered, including a badly fractured hand." Accordingly, the injuries in respect of which David Murray was convicted were less serious also than the brain damage suffered by the victim in respect of whom David Pitt was convicted. 10 Moreover the prospects for rehabilitation of David Murray were far greater than those which regrettably applied to either of the Pitt brothers and this applicant in particular. 11 When all those matters are considered it seems to me that no question of parity or partial parity arises. There were powerful reasons for distinguishing between the applicant and David John Murray on almost every element relevant to the sentencing process. Accordingly in relation to David John Murray I am satisfied that there can be no justifiable sense of grievance. 12 Peter James Murray was in much the same position as his elder brother. He was just over eighteen years of age at the time of his sentence, which was imposed by Payne DCJ on 26 September 2002. He too was convicted upon his plea of the offence of maliciously inflicting grievous bodily harm, this also was in respect of a victim who was not so seriously injured as the victim in respect of whom the Pitts were convicted. He too had a far less serious record containing two offences of malicious damage and two counts of common assault. Again, his prospects of rehabilitation were significant. When dealing with an offender aged but eighteen rehabilitation looms larger than it does with older offenders. 13 Peter Murray was sentenced to a term of imprisonment of eighteen months with a non parole period of eight months. For the same reasons that I have briefly mentioned in relation to his brother David, I consider that the points of difference between the sentencing exercise as it affected Peter Murray were so different from those affecting the applicant that no argument of disparity is appropriately raised and, in respect of Peter James Murray's sentence, the applicant can have no legitimate sense of grievance. 14 I briefly need to refer to the sentence passed on the applicant's brother Frederick. His Honour was aware of the possible disparity issues that arose with respect to the two brothers. His Honour pointed out that the considerations mentioned in Fernando's case [1999] NSWCCA 66 applied to both of the brothers. His Honour pointed out however that "If one looks at their respective records and their ages the applicant's record for his age is worse than his brother's at his age and I really cannot on the evidence see any way to split them in relation to the sentence that is to be imposed." If I may say so with respect I consider that his Honour was completely right as to this matter. 15 The applicant submits that the learned sentencing Judge did not give sufficient weight to the considerations mentioned by Wood CJ at CL in Fernando and argued that those principles should have led to a larger reduction in the statutory ratio between the head sentence and the non parole period. It may well be that another judge would have made a greater adjustment. However, I am very far from persuaded that his Honour erred in imposing the non parole period that he did. 16 Accordingly I would give leave to appeal and dismiss the appeal. 17 SULLY J: I agree. 18 GREG JAMES J: I also agree. I am of the view that the Trial Judge's findings, especially his remarks on sentence commencing with, "The jury accepted that these two accused with two others had Wortley [down] and they thereupon punched him. He was kicked on the ground, objects were dropped onto his head, a rock was dropped onto his head and he was kicked in the head by one of them." described what was in the Trial Judge's view the appropriate physical ambit of the acts committed by the offenders. The Trial Judge remarked that although there was no specific evidence to identify either of the two persons to be sentenced with any individual incident: "It is my view the jury found them guilty on the case presented by the Crown of common purpose." I understand by that the Trial Judge proceeded to sentence on the basis that he affirmatively found liability in the applicant and his co-offender for each of those acts. 19 In my view there is no substance in the asserted parity point. It is particularly important to notice the difference between the two offences charged. This offence involved a malicious intent to inflict grievous bodily harm where the offender turned his mind to the infliction of grievous bodily harm and proceeded to embark upon, with others, the inflicting of it. 20 I am unable to see in those circumstances that the sentence passed by the learned Trial Judge is such that it is not warranted in law or that some other sentence should have been passed. In my view the application for leave to appeal, as has been already proposed by Adams J should be granted only because the matter has been fully argued. I agree with the orders proposed. 21 SULLY J: The orders then will be as proposed by Adams J. The Court is grateful to counsel for their assistance.