New South Wales Court of Criminal Appeal CITATION: Regina v BUDDLE [2005] NSWCCA 82 HEARING DATE(S): 25 February 2005 JUDGMENT DATE: 25 February 2005 JUDGMENT OF: Spigelman CJ at 22, 24; Wood CJ at CL at 1; Barr J at 23 DECISION: 1.Leave to appeal against sentence granted; 2.Appeal allowed; 3.Sentence quashed and in lieu, the applicant be sentenced to imprisonment for 5 years to commence on 21 November 2003, with a non-parole period of 3 years also to commence on 21 November 2003 and to expire on 20 November 2006 which date would be his earliest parole release eligibility date. CATCHWORDS: CRIMINAL LAW - appeal against sentence - plea of guilty - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - assault occasioning actual bodily harm on a Form 1 - provocation - whether sentence manifestly excessive - whether sentencing judge erred in assessment of the objective criminality involved - whether sentencing judge paid sufficient regard to subjective circumstances LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518 R v Watt NSWCCA 2 April 1997 CASES CITED: R v Wikki NSWCCA 13 September 1993 Veen v The Queen (No 2) (1988) 164 CLR 465 Regina PARTIES: Thomas John BUDDLE FILE NUMBER(S): CCA 2004/2683 P Barrett (Crown) COUNSEL: A Francis (Applicant) S Kavanagh SOLICITORS: S E O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/1126 LOWER COURT JUDICIAL OFFICER: Berman DCJ - 5 - IN THE COURT OF CRIMINAL APPEAL 2004/2683 SPIGELMAN CJ WOOD CJ at CL BARR J NEWCASTLE FRIDAY 25 FEBRUARY 2005 Regina v Thomas John BUDDLE Judgment 1 WOOD CJ AT CL: The applicant seeks leave to appeal against the sentence which was imposed by his Honour Judge Berman of Senior Counsel in the District Court on 21 November 2003 following his plea of guilty to an offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. An offence of assault occasioning actual bodily harm, committed at the same time, was taken into account on a Form 1. 2 The sentence imposed was one involving a head sentence of imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 3 months. 3 A discount of 10 percent was given for the plea, which was entered on the morning that the matter was listed for trial. Special circumstances were found. Facts 4 His Honour found that the offence was committed in circumstances of provocation insofar as it occurred after the two victims had: (i) damaged the security door to the applicant's home while attempting, in a drunken state, to force entry to those premises; (ii) had struck his son when he went out to investigate; and (iii) had then assaulted him after he had pursued them up the street. 5 Having been the subject of these incidents, the applicant and his son armed themselves with baseball bats or pieces of timber, and resumed a pursuit of the two men in a motor vehicle. When they caught up with them, the applicant was seen to strike one man, Rex Tyson, with a full force blow to the head. After Tyson fell to the ground, the applicant continued to strike him and to kick him, as did his son, even though he lay unconscious and defenceless on the ground. When the other man, Brian Concannon, tried to assist Tyson, he too was struck by the applicant and by his son. 6 Mr Tyson suffered serious injuries in the incident comprising a fractured rib, a fractured skull, an intracranial haemorrhage which required surgery, and a lacerated spleen. He has been left with ongoing disabilities, including headaches, a loss of smell and constant ringing in the ear. 7 In support of the submission that the sentence was manifestly excessive, it was contended that his Honour erred in his assessment of the gravity of the applicant's conduct, and also in giving insufficient regard to his subjective circumstances. 8 It is not contended that his Honour erred in relation to the discount for the plea which clearly was a late plea. Nor is it contended that he failed to have regard to the matters to which attention needed to be given in accordance with Section 21A of the Crimes (Sentencing Procedure) Act. Express reference was made by his Honour to the aggravating circumstances, which were found to include the use of weapons, the commission of the offences in company, the infliction of gratuitous cruelty, and the substantial injuries that were sustained. The mitigating factors found included the presence of provocation, the applicant's previous good character, his favourable prospects of rehabilitation, his plea and his remorse. 9 It was argued that his Honour overstated the objective seriousness of the offence insofar as he observed that it was "difficult to envisage a more cowardly attack on a fellow human being", since a more serious attack could readily be envisaged. 10 There are two answers to that proposition. First, his Honour's observation needs to be understood in the context of the remarks which followed, which make it clear that the observation related to the fact that both the applicant and his son were armed with weapons and continued to use them on a man who was defenceless on the ground. Secondly, as was made clear in Veen v The Queen (No 2) (1988) 164 CLR 465, it is not fruitful to construct or to imagine other factual instances that may be even more reprehensible than that before the Court. 11 While the presence of provocation was an important aspect in assessing the applicant's objective criminality, and while it provided a motive for what might otherwise have been an incident of unexplained or random violence, it did not excuse his conduct. It is not the case that the victim of a crime can take the law into his own hands and exact physical revenge. Both personal and general deterrence therefore had a role to play in sentencing the applicant. 12 The response of the applicant was on any view a gross over-reaction and it involved a considerable degree of violence. I am not persuaded that his Honour fell into error in assessing the degree of objective criminality involved in this incident. 13 The applicant was however entitled to call in aid a very powerful subjective case. He was aged 44 years at the time of the sentence, he had a clear criminal history for the preceding 20 years, and he had been the sole carer of two sons for 15 years, as well as the carer of the half brother to one of those sons. There was impressive evidence available as to his good character and as to his extensive community contribution. That had included membership of the Board of ATSIC for which he had personally raised funds, participation in the activities of the McColls Glebe Estate Community Centre, support of the Waterloo Waratahs Junior Rugby League Football Club where he coached its youth teams, and membership of the Clovelly Surf Lifesaving Club. 14 Although he had overcome an earlier heroin addiction, he had been on sickness benefits and was suffering from depression and a fragile psychological state during the period leading up to the offence. This was associated with a number of factors, including stress arising from his chronic dysfunctional family background, the serious recidivism and anti-social behaviour of one son, the current coronial inquiry into the death in custody of the half brother of the son who had been his co-offender on this occasion, the recent diagnosis of a terminal illness in his brother and his witnessing of a violent crime only weeks earlier. 15 Doctor Tran provided a report in which he expressed the opinion that the applicant's offending behaviour on this occasion could be partly attributed to his underlying psychological vulnerability. 16 There is no suggestion that his Honour overlooked any relevant aspect of the applicant's subjective case, nor could there be in the light of his findings as to the applicant's social and psychiatric state, his favourable prospects of rehabilitation, his remorse and the additional difficulty which custody would present for him given the background of a recent death in custody of the young man who he had taken into care, and his psychological state. 17 There being therefore no patent error of law, this application depends upon an assessment as to whether the sentence was so far outside a permissible exercise of the sentencing discretion, that some lesser sentence was warranted in law and should have been passed. That assessment does need to be made, as the Crown has pointed out, in the light of the seriousness with which this offence is regarded, as is indicated by the maximum sentence of imprisonment for 25 years see R v Watt NSWCCA 2 April 1997 and R v Wiki NSWCCA 13 September 1993. 18 It also needs to be taken into account in circumstances where a Form 1 offence was available and which was to be considered by his Honour in accordance with the principles established in Attorney General's application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518. That offence was itself a serious offence involving a separate assault which was not of a trivial nature. 19 Nevertheless after making full allowance for these factors, and for the degree of violence involved in what was a spur of the moment, and out of character attack, occurring in circumstances of provocation, I consider that the sentence exceeded the legitimate range for an offender with the very compelling subjective circumstances here demonstrated. 20 There is no basis for any concern as to the applicant's future dangerousness. However the case is one that calls for an extended period of post release supervision in view of his psychological condition and his need for assistance in reintegrating into the community. Similarly to his Honour, I am satisfied as to the existence of special circumstances referable to those considerations, that would justify a variation in the statutory ratio between the term of the sentence and the non-parole period. 21 I would accordingly propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentence quashed and in lieu, the applicant be sentenced to imprisonment for 5 years to commence on 21 November 2003, with a non-parole period of 3 years also to commence on 21 November 2003 and to expire on 20 November 2006 which date would be his earliest parole release eligibility date. 22 SPIGELMAN CJ: I agree. 23 BARR J: I also agree. 24 SPIGELMAN CJ: The orders of the Court are as indicated by Justice Wood. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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