New South Wales Court of Criminal Appeal CITATION: Regina v Bobak [2005] NSWCCA 320 HEARING DATE(S): 6 September 2005 JUDGMENT DATE: 6 September 2005 JUDGMENT OF: McClellan CJatCL at 34; Grove J at 1; Smart AJ at 35 DECISION: APPEAL DISMISSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - MALICIOUS INFLICTION OF GRIEVOUS BODILY HARM WITH INTENT - HORRIFIC INJURIES AND PERMANENT DISABILITY OF VICTIM - OFFENDER ONE OF TWO ENGAGED IN JOINT COMMISSION OF CRIME - OFFENDER THE ACTUAL PERPETRATOR OF MOST SERIOUS ASSAULT - PRIOR RECORD - NO JUSTIFIABLE GRIEVANCE ARISING FROM LESSER SENTENCE RECEIVED BY CO-OFFENDER - SENTENCE AT TOP OF RANGE WARRANTED Lowe v The Queen 1984 154 CLR 606 R v Fidow [2004] NSWCCA 172 CASES CITED: R v Kirkland [2005] NSWCCA 130 R v Scott [2003] NSWCCA 286 R v Thompson & anor 2000 49 NSWLR 383 PARTIES: Regina v Trevor Mark Bobak FILE NUMBER(S): CCA 2005/866 J. Bennett SC (Crown) COUNSEL: P. Hamill SC (Appellant) S. Kavanagh (DPP) SOLICITORS: S. O'Connor (Appellant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/1175 LOWER COURT JUDICIAL OFFICER: Keleman DCJ IN THE COURT OF CRIMINAL APPEAL 2005/866 McCLELLAN CJ at CL GROVE J SMART AJ 6 September 2005 REGINA v TREVOR MARK BOBAK Judgment 1 GROVE J: The applicant/appellant seeks leave to appeal against severity of sentence imposed upon him by Keleman DCJ in Sydney District Court. The appellant and a co-offender (Paul Matthew Kirkland) were scheduled to appear for trial, however, in discharge of indictment, the Crown accepted pleas of guilty by both offenders to counts of maliciously inflicting grievous bodily harm upon Richard Boyd Law with intent to do so and aggravated breaking and entering of Mr Law's dwelling and the stealing of a stereo system therefrom. On the firstmentioned count the appellant was sentenced to imprisonment for sixteen years with a non-parole period of twelve years and on the other count to imprisonment for a fixed term of two years and nine months. The shorter term is now expired and the present application relates to the longer sentence. On the identical charges, Kirkland was sentenced to imprisonment for twelve years with a non-parole period of eight years and a fixed term of two years. 2 The first ground of appeal, which complains of disparity between the sentence received by the appellant and that received by Kirkland makes it appropriate to sketch facts relating to the activity of both offenders. 3 The appellant, Kirkland and the victim Law were acquainted with each other. On Thursday 5 September 2002 the appellant and Kirkland were at the former's flat where they consumed a large amount of alcohol. The appellant suspected that Mr Law was in possession of a bracelet belonging to the appellant's daughter. The offenders set out to retrieve this item. Upon arrival at Mr Law's flat, no one appeared to be home and the appellant, at Kirkland's urging, kicked the door open. They did not obtain the bracelet but stole a stereo system and a speaker. These items were later retrieved from another person who had taken them into his custody with the intention of returning them to the owner. The taking of these items represented the offence for which the offenders received the shorter sentence. 4 They returned to the appellant's unit. A somewhat unconventional handgun was produced. The appellant had performed some modifications in order to render the item operable. Discussions took place about using it to threaten the victim. Whilst this discussion was occurring there was on a nearby table a hand tool known as a plasterer's hammer, which consisted of a handle to which a hammerhead was fixed to the top at one side and a small axe blade or tomahawk on the other. 5 Later in the evening the two men left the flat for the purpose of threatening Mr Law with the gun. The appellant brought the hammer. They came upon him as he was riding a bicycle down an alleyway and they set upon him. The appellant struck Mr Law repeatedly with the hammerhead causing fracture of his skull. He then turned the implement and struck the victim with the axe blade. This penetrated Mr Law's skull and entered the middle of his brain. Kirkland joined in by slamming his head on the ground and stomping upon the victim, in whose head the hammer was still embedded. Despite efforts on their part they were unable to remove it from his head and they dragged the victim into a gutter and left. 6 The events were witnessed and passers-by who sent for assistance. Mr Law as taken to hospital with the implement still embedded in his skull. Emergency neurosurgery demonstrated that his frontal brain lobe was vertically cleaved and severely damaged. The axe blade was wedged under the skull bone and multiple loose skull fragments were present underneath the skull. 7 Mr Law survived, however he was in hospital for about seven months, after which he was discharged to live with his mother who left her employment in order to become his full time carer. There is no doubt about the accuracy of the description by Keleman DCJ of the devastating effects upon the victim's life, which were profound, pervasive and permanent. Mr Law is unlikely to be able to live safely without assistance or to participate in open employment. There were said to be insufficient community services to support him and that he may need institutional care, such as a nursing home when his mother cannot continue to support him. 8 I see no error in the general finding of the sentencing judge that the attack was a determined, sustained and alarmingly callous, vicious and savage one. It involved prior planning and premeditation on the part of both offenders. 9 It is to be noted that the Court, differently constituted, dismissed an application for leave to appeal against severity of sentence by Kirkland ([2005] NSWCCA 130) in the course of which it was determined that the sentencing judge made an error in finding that Kirkland knew that the appellant had armed himself with the plasterer's hammer when they left the flat, but it was held that that error would have had minimal effect on the sentence imposed. That absence of consequence was conceded by counsel appearing for Kirkland in that appeal. 10 The first ground complains that the sentence imposed on Kirkland gives rise to a justifiable sense of grievance in the appellant. The principles applicable when a ground such as this is advanced are well established and do not require repetition for present purposes: Lowe v The Queen 1984 154 CLR 606. 11 As the figures already recited demonstrate, the head sentence and non parole period received by Kirkland were, in each respect, four years less than that received by the appellant. The essential question is whether that divergence would give rise to a justifiable sense of grievance on the part of the appellant, having regard to the differences between the offenders in age, background, previous criminal history, general character and the parts which they respectively played in the offence. 12 I have mentioned above the error found by this Court in relation to the knowledge of Kirkland as to the time at which the appellant was armed with the hammer although it was, in ultimate assessment concerning Kirkland, of little consequence. However, to whatever extent it may have operated to lessen an aspect of the culpability of Kirkland, it would enlarge the extent of difference between him and the appellant. 13 As is apparent from the foregoing, a stark difference between the two offenders is to be found in the individual conduct of the appellant in actually wielding the weapon and implanting it by use of the blade in the head of the victim. Whilst it must be acknowledged that Kirkland was a participant in the joint criminal enterprise, that does not exclude assessment of the separate acts undertaken by the respective participants. 14 It is true that the appellant is some years younger than Kirkland (when dealt with at first instance Kirkland was aged thirty six, the appellant was aged twenty eight) but the appellant had been before courts on a number of occasions commencing in 1993 and significantly had convictions in 1999 for assault occasioning actual bodily harm and in 2000 for common assault. For the latter and other offences, one of which involved breach of an apprehended domestic violence order he was imprisoned for three months. In contrast, Kirkland, the older offender, had been before a court on a single occasion where he was placed on a recognizance for driving whilst there was present in his blood the prescribed concentration of alcohol. In those circumstances the learned sentencing judge took the view that he would approach the sentence of Kirkland on the basis that he was a first offender. I perceive no error in that approach. 15 The single offence of Kirkland was sufficiently recent to have the consequence that the recognizance to be of good behaviour was at the time of the commission of the current offences. The appellant was subject to a similar recognizance. 16 The significance of the existence of current recognizances to be of good behaviour is that it constitutes a factor of aggravation where offences committed in the face of what in effect amounts to conditional liberty. The learned sentencing judge took the view that it was pertinent to look behind the mere existence of recognizance and examine the nature of the offences for which recognizances had been granted, and in that regard the situation of Kirkland was more favourable than that of the appellant. The recognizance relative to the appellant arose out of offences of having an offensive implement in his custody in a public place and maliciously destroying or damaging property. 17 I do not consider that the discrimination in these regards which his Honour made in favour of Kirkland can reasonably contribute to a sense of grievance about the sentences received respectively by the offenders. 18 It is clear that his Honour was alert to the need to bear in mind the joint participation of the offenders but in my view the differences between the specific actions undertaken by each, the differences in background and criminal history, the consequent need for personal deterrence of the appellant together with findings concerning prospects of rehabilitation, viewed in combination, made the discrimination in the exercise of sentencing discretion in each case by his Honour well within the range of sound application. 19 The second specific ground asserts that the sentencing judge erred in finding that the appellant's prospects of rehabilitation were poor. 20 The learned sentencing judge exposed the processes of his reasoning in this regard in considerable detail in his remarks on sentence. It is not necessary to repeat what can be read there but his final conclusion was expressed in these terms: "While I am not prepared to rule out the eventual rehabilitation of the offender with advancing years and increasing maturity, given his long history of uncontrolled substance abuse, his poor response to previous supervision, and his other problems, I am satisfied that despite the existence of some present indications of positive changes in his attitude and behaviour, his rehabilitation prospects can only be described as poor." 21 The submission on behalf of the appellant is couched in terms of asserting that in assessing the appellant's prospects of rehabilitation his Honour failed to give weight to certain considerations. The onus is upon the appellant to demonstrate that his Honour's finding was wrong. The submission refers to factors which were expressed in the following terms: "(a) While the appellant had "undermined" previous supervised bonds by drug and alcohol use, he had put some effort into completing programmes on bonds, indicating that there is some capacity and willingness to do so. (b) Despite a long criminal record, the appellant only previously been in prison for a short period (three months). (c) While the appellant cannot deny history of serious drug and alcohol abuse, he had not previously participated in a rehabilitation or detoxification program. He has remained abstinent in the community for three months, indicating that there is real hope that with assistance, he might be able to overcome his addiction. (d) In custody, the appellant has completed programmes aimed at addressing some of the problems mentioned in the recommendations above. (e) The appellant demonstrated generally improving attitude and demeanour since being in custody (e.g. his father's observations, wing's sweeper role, less tremulousness for psychiatric and psychological interviews over time, decreasing (or no) need for prescription medications). (f) The appellant has in the past requested, but been refused, psychiatric admission to hospital, indicating some capacity for insight into his condition. (g) The appellant's underlying cognitive capacity. (h) The appellant has the support of his parents and a brother and has some telephone contact with his children. (i) The appellant's plea of guilty and expressions of remorse and contrition which his Honour accepted were genuine." 22 The very language of these submissions, which is both tentative and conditional, demonstrates to the point of being virtually self-evident, that his Honour's finding in this regard was not erroneous. 23 The third ground asserts that his Honour erred in taking into account the elements of the offence as aggravating factors. 24 That there was infliction of grievous bodily harm with intent to do grievous bodily harm were elements of the offence but this does not preclude his Honour from making assessment of the extent of grievous bodily harm in the particular case. Indeed, it would be a notable deficiency were he not so to do. It is recognized that the Legislature has chosen to schedule aggravating features in terms of s 21A of Crimes (Sentencing Procedure) Act 1999 but aggravation is a word which is usable other than for the purpose of incanting the statutory prescription. In the present instance, his Honour's language, in my view, did no more than elaborate the gravity of this particular offence. With respect to the proponent, a submission which acknowledged that the sentencing judge did not consider the injuries in terms of the word "substantial" which is used in s 21A(2)(g) but put that his description of "profoundly devastating" demonstrated that he had such an assessment in mind does bespeak error. It certainly does not show that his Honour impermissibly had additional regard to elements of the offence as aggravating factors. 25 The fourth ground complains that his Honour erred in failing to give the appellant an appropriate discount for the plea of guilty, and in treatment of the appellant's remorse and contrition. 26 The argument in support of this ground implies that the appellant was entitled to a discount at the top of the range contemplated in the guideline judgment in R v Thompson 2000 49 NSWLR 383. In every case it is a matter for discretionary judgment to make an appropriate assessment. His Honour made express reference to the range of discount in that authority as lying between 10 and 25 percent and concluded that each of the offenders (the appellant and Kirkland) should have a discount of 20 percent of otherwise appropriate sentences. It is submitted that these remarks indicate a total discount of 20 percent encompassing both the utilitarian value of the plea and the (as found) genuine contrition. 27 Whilst, it may be desirable to sever any discount for so-called utilitarian value for the purpose of subsequent analysis, intervention by this Court is attracted by demonstration of error. Such demonstration is not made: cf R v Scott [2003] NSWCCA 286. 28 The fifth ground asserts that his Honour erred in failing to find special circumstances justifying a shorter non-parole period and a longer period of parole. This ground is sought to be supported by a submission relying upon evidence of the appellant's psychological and substance abuse issues, length of sentence, difficult background and hopeful signs in relation to rehabilitation and that this was the first significant custodial sentence which in combination amounted to special circumstances. Some or all of these in combination may so amount but as Spigelman CJ stated in R v Fidow [2004] NSWCCA 172: "Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in R v Simpson 2001 53 NSWLR 704, it is necessary that the circumstances be sufficiently special to justify a variation." 29 It is acknowledged that a finding of special circumstances is a discretionary matter for the judge. There is no indication that his Honour's discretion miscarried. 30 The sixth ground submits that the sentence is manifestly excessive. 31 In the course of his remarks Keleman DCJ said: "The offence involving the attack upon Mr Law falls right at the very upper end of the range of seriousness for offences of this type and, if not the worst of its type, (it) is not far from it." 32 The use of that expression in the context of this particular case was the subject of extensive analysis by Hunt AJA who gave the leading judgment in the appeal of Kirkland. It suffices for present purposes to record adoption of what was then said. As was also said on that occasion Keleman DCJ was justified in considering that this offence deserved a sentence at the very upper end of the range of sentences imposed for offences of this type. That comment remains applicable. It loses no force because the sentence in fact received by the appellant was longer than that received by Kirkland. In my view the imposition was well within the range of the sound exercise of judicial discretion. 33 Having regard to the length of sentence, leave to appeal against sentence should be granted, but I would dismiss the appeal. 34 McCLELLAN CJ at CL: I agree. 35 SMART AJ: I also agree. 36 McCLELLAN CJ at CL: The orders of the Court will be the orders as announced by Grove J. ********** 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.