REGINA v. McKAY [2003] NSWCCA 32

New South Wales Court of Criminal Appeal

CITATION : REGINA v. McKAY [2003] NSWCCA 32 HEARING DATE(S) : Wednesday 19 February 2002 JUDGMENT DATE : 19 February 2003

JUDGMENT OF : James J at 20; Greg James J at 1 DECISION : Leave to appeal granted; appeal dismissed

CATCHWORDS : Criminal law - appeal - sentence - offence of domestic violence involving substantial injury to partner - degree of seriousness of offence - asserted vulnerability and non-violent character of prisoner - no error by primary judge. LEGISLATION CITED : Crimes Act 1900 CASES CITED : N/A PARTIES : REGINA v. McKAY, Glenn James FILE NUMBER(S) : CCA No. 60398 of 2002 COUNSEL : Crown: D.C. Frearson App: P.M. Winch SOLICITORS : Crown: S.E. O'Connor App: D.J. Humphreys

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/080 FILE NUMBER(S) : LOWER COURT English, DCJ. JUDICIAL OFFICER :

- 7 - IN THE COURT OF CRIMINAL APPEAL No. 60398 of 2002

JAMES, J. GREG JAMES, J.

FRIDAY 21 FEBRUARY 2003 REGINA v. GLENN JAMES McKAY Judgment

1 GREG JAMES J: This is an application for leave to appeal against sentence in respect of the applicant's conviction on one count of maliciously inflict grievous bodily harm, an offence punishable under s.35(1)(b) of the Crimes Act 1900 by a maximum penalty of seven years imprisonment. The applicant pleaded guilty to that offence and his Honour Judge English in the District Court imposed upon him by way of sentence for that offence, a sentence of imprisonment for three years to commence on 6 June 2002. In relation to that sentence she imposed a non-parole period of 18 months to expire on 5 December 2003. 2 The applicant was 37 years of age at the time he came forward for sentence and had been living for some time in a de facto relationship with the woman who was the victim of the offence. 3 In her remarks on sentence her Honour set out the circumstances of the offence as follows:- "The circumstances giving rise to the assault were that the offender returned home after attending the Terrigal Memorial Club with his mother on 22 October 2001. On arriving home, he apologised to the victim Karen Anne Shepherd for being late. A short discussion ensued and he left again to purchase some milk. He returned again and another argument developed about dinner. The offender threw a plate of sausages on the floor, he then walked into the dining room and began to throw a number of items around the room. The victim said, 'If you are going to wreck the place, I'll cal the police. This is my stuff'. He then walked up behind the victim, placed her head in a headlock and forced her to the ground. He struck her a number of times to the face with a closed fist. The victim's daughter attempted to contact the police. He prevented the child from using the phone. He did however convey the victim to a nearby medical centre and then to the Gosford Hospital for treatment. Police attended the hospital and spoke to the victim. They observed a number of injuries including two blackened eyes, a swollen nose and face and lacerations to her arms and upper body. She appeared to be having difficulty breathing. Police were informed on 25 October 2001 that the victim would require surgery to reconstruct her left cheekbone and eye socket. The offender was arrested on 29 October 2001. He declined to be interviewed, as was his right. When giving evidence before me, the offender says he only hit the victim two or three times to the face. I am asked to find that the victim has exaggerated to the hospital staff and to police that the offender prevented her from seeking medical attention for up to an hour. Whilst I accept that the offender took her for treatment almost immediately, I am not prepared to find that she has exaggerated the extent of the assault upon her." 4 The trial judge referred to the extent of the damage inflicted in that passage. It can be seen that the injury to the victim's face was a most substantial injury. The injuries were inflicted obviously in an episode characterised by fairly high emotion. 5 One of the grounds of complaint concerning the sentence is the trial judge failed to have sufficient regard to the particular vulnerability of the applicant at the time of these events, arising from his having been grieving for his father who had died some time earlier, he having returned home after having been with his mother at a club that afternoon. The applicant gave evidence as did his mother. In his evidence appears the following from page seven of the transcript of the applicant's evidence:- "Q. Now you're father died as you said on 10 October, how did that effect you? A. It shattered me, yeah. Q. Okay and you attended the funeral some six days later, is that correct? A. That's right.\ Q. And how were you feeling then? A. A mess. Q. Okay, now you then - this incident occurred on 22 October, is that correct? A. That's right. Q. So it was six days after your father's funeral, how were you then? A. Yeah, I mean my - my mind was just a mess and it's hard to describe exactly the way I was feeling because I was feeling a lot of different things then. Q. Okay, how do you feel now? A. Not that much better." 6 The applicant's mother was asked about the applicant having taken over the responsibility for her, she being quite dependant on the death of his father and agreed she said that the applicant was not a violent character but normally very quiet and would sit down and talk to people and that having heard what Glenn had done she was of the view that that was "not Glenn, not Glenn at all." She said that what had happened had arisen because of her husband's death having shattered Glenn who was very grief stricken. She referred to Glenn having taken her out that day, some six days after the funeral, she said in that regard when questioned:- "Q. Yes, and how did Glenn appear on that day? Was he angry or was he - how was he acting, was he acting different at all? A. No, he was - he was very - still very depressed, but he wasn't angry, no." 7 Before the trial judge also was a report by a psychologist in relation to the applicant and in relation to his emotional condition at the time of these events. The psychologist opined:- "Mr. McKay's loss would appear to have evoked a strong emotional reaction - when his bond and feelings towards his father and family were threatened and he felt unsupported. Mr. McKay would have been in the earliest stages of the grieving process, accepting the reality of the loss, even if the death was expected." 8 Reference was made to normal grief taking on many forms and it was suggested that Mr. McKay's ability to control his emotions was under threat because of the recency of the death. The psychologist concluded that it appeared that Mr. McKay was not a generally violent man and that he was in a state of disbelief of what he had done. That he found it difficult to come to terms with the fact that he is a violent man or has the capacity to be so violent. He asserts and the psychologist appears to accept, that the situation that lead him to committing this violent act was unfortunate and he was apparently unable to make a clear and sound judgment in his grief stricken state. The psychologist recommends supervision, attendance at an anti violence program and counselling for grief and anger management. 9 The trial judge however, adverts to this matter when at page four of the remarks on sentence he said:- "When not in custody he worked for his father as a bricklayer until his father's death in October last year and he has continued to work for his brother who has taken over his father's business. The offender says that he was very close to his father. At the time of the assault he was in the grieving process, it being only days after the death of his father. The offender expressed to Kaylene Atkins the therapist who saw him for assessment, his remorse and contrition. He did likewise before me. I accept as genuine his expressions of remorse and contrition." 10 It has been argued on behalf of the applicant that although the sentencing judge recognised the matter of remorse and contrition, the sentencing judge failed to attribute sufficient significance to the vulnerability of the applicant at the time at which he reacted so appallingly to his partner's criticism of his having arrived home as he did. It is submitted that the trial judge failed to give sufficient attention to the applicant's state and failed to come to a conclusion that the behaviour was out of character and the conclusion that the offence was thereby to be regarded as a mere aberration such that it would be unlikely to commit such an offence again. 11 The trial judge did make reference to the offender having taken positive steps as recommended by the psychologist, attending for two sessions of counselling. And the trial judge did have regard and in particular in relation to the reduction of the non parole period from that which would usually accompany such a sentence as she passed to his attendances at counselling as recommended. Particularly she had regard to the plea of guilty and contrition. But she concluded that in the circumstances, particularly because the crime was a crime of considerable brutality occasioning to the victim a considerable degree of physical harm, and which was inflicted in her own home and in front of her children, it was one that required a sentence of imprisonment for the purpose of satisfying the requirements of the law for general and specific deterrence. 12 I do not see that the trial judge failed to appreciate the offender's emotional and mental circumstances at the time at which this offence was committed. Insofar as the trial judge has not weighed that circumstance more highly, this is as best I can see, a matter of fact for her, in particular, in the light of the fact that she saw and heard the evidence of the applicant and had the advantage also of the psychologist's report to which I have referred. 13 It was also argued that although the harm he occasioned was serious, nonetheless it was not at the upper scale of seriousness appropriate to this offence and that where the trial judge in her remarks on sentence described that harm, she overstated the effect of it insofar as an offence of this kind is concerned when she said:- "I regard the offence as being toward the upper end of the scale constructed for such offences." 14 That statement was made in the context of a passage which adverts to wider considerations. The full passage reads as follows:- "Unfortunately domestic violence is all too frequent. Having regard to the severity of the injuries sustained by the victim and the impact the episode has had upon her, I regard the offence as being toward the upper end of the scale constructed for such offences. Domestic violence, contrary to the view of some, is not tolerated by society and will not be tolerated by this court. Victims of domestic violence should be confident that perpetrators will be convicted and severely punished, not only to deter them but also in an endeavour to deter others who may have similar inclinations. The victims are entitled to look to these Courts for protection." 15 That passage contains a reference to the victim impact statement which was before her Honour. That included reference to the physical harm sustained by the victim and also to the emotional and psychological effects of the assault upon her together with the sequels which involved her living a life of insecurity and having to change houses in a way disruptive both to the children and herself. It refers also to the circumstances of the children. 16 The contention is that the physical harm was only such that the matter should be regarded as at the lower end of the scale appropriate for this offence. That contention focuses far too narrowly in the circumstances of this case. I cannot see that the trial judge has erred in what she has said particularly having regard to the fact that the sentence she imposed involved a sentence which is itself in the lower half of the sentences provided for this offence. 17 The applicant had a prior criminal record. There were two matters of violence on his record relating to assaulting police officers. It does not appear to me that her Honour regarded those matters as such as to deprive the submission that he was not generally a violent man of a deal of its significance. I do not see she erred in the way in which she approached the question of the applicant's character as a violent or non violent man. Reference was made in the written submissions to a passage in her remarks on sentence which might have been misconstrued. When dealing with this question of his prior record her Honour said:- "However to his credit it does not appear that he has come to the notice of the authorities since his release from custody in February 1997. He was serving two years parole following his release from custody." 18 The instant offence occurred on 22 October 2001. The applicant was arrested on 29 October 2001. He had completed serving his two years parole before the commission of this offence. Her Honour's reference to that matter in no way embraced the proposition that he was on parole at the time of the commission of this offence and that thereby the offence was in any way aggravated. 19 In conclusion I am unable to detect any legal flaw in the sentencing process employed by her Honour, nor am I able to conclude that the sentence passed is excessive such that some other sentence warranted in law, should have been passed. I am of the view that having regard to the matter being fully argued, leave to appeal should be granted but the appeal dismissed. 20 JAMES, J: I agree with the orders proposed by Greg James, J. for the reasons his Honour has given. The orders of the court will be leave to appeal against sentence granted but appeal against sentence dismissed. **********