New South Wales Court of Criminal Appeal CITATION: Regina v Fields [2005] NSWCCA 37 HEARING DATE(S): 16/02/2005 JUDGMENT DATE: 16 February 2005 JUDGMENT OF: Bryson JA at 1; Barr J at 40; Hoeben J at 2 DECISION: Leave to appeal against sentence granted - appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW: s95(1) Crimes Act 1900 - assault maliciously inflict actual bodily harm with intent to rob - objective seriousness of offence - balancing aggravating and mitigating factors. LEGISLATION CITED: Crimes Act 1900 R v Ceissman [2001] NSWCCA 73 R v Fernando (1994) 76 A Crim R 58 at 62-3 R v Fernando [2002] NSWCCA 28 CASES CITED: R v Hayes [2002] NSWCCA 410 R v Lao [2003] NSWCCA 315 R v Pitt [2001] NSWCCA 156 Karl Douglas Fields - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2004/2450 R Hulme SC - Applicant COUNSEL: DC Frearson SC - Respondent Sydney Regional Aboriginal Corporation Legal Service - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/61/0160 LOWER COURT JUDICIAL OFFICER: Nield DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2450 BRYSON JA BARR J HOEBEN J Wednesday, 16 February, 2005 REGINA v Karl Douglas FIELDS Judgment 1 BRYSON JA: We will proceed to give judgment and Hoeben J will give judgment first. 2 HOEBEN J: Offence and sentence On 11 March 2003 the applicant was sentenced by his Honour Judge Nield in the District Court at Bathurst in relation to the following offence: That Karl Douglas Fields on the 24th day of July 2002 at Glen Innes in the State of New South Wales did assault with intent to rob George Edwards and at the time maliciously inflicted actual bodily harm on the said George Edwards (s95(1) of Crimes Act 1900). 3 The maximum penalty for that offence is imprisonment for 20 years. 4 The applicant entered a plea of guilty to that charge on 9 September 2002 when the matter was listed in the Local Court. The applicant gave evidence before Nield DCJ on 1 November 2002. His Honour sentenced the applicant to imprisonment for 6 years commencing 25 January 2003 and expiring on 24 January 2009. His Honour fixed a non-parole period of 4 years commencing 25 January 2003 and expiring on 24 January 2007. Factual background to offence 5 At 10.30 pm on 24 July 2002 the applicant went to the home of Mr George Edwards, a sixty one year old disability pensioner in Glen Innes. He was accompanied by Ms Georgina Cox, who knocked on the door. When the door was opened the applicant pushed his way into the room and demanded $300 from Mr Edwards. The applicant punched him in the forehead when he refused. Mr Edwards suffered a laceration above his right eye and fell to the ground. The applicant then punched him in the face several times and kicked him about the body. 6 The applicant demanded Mr Edwards' wallet and when it was not forthcoming he searched Mr Edwards and then his bedroom. The applicant then returned and punched Mr Edwards in the head. 7 After ordering Ms Cox to leave, the applicant obtained a breadknife from the kitchen and placed it to Mr Edwards' throat, again demanding his wallet. Mr Edwards was terrified and believed he was about to be killed, but continued to refuse to hand over his wallet. The applicant threatened him a number of times that if he reported the matter to the police, he would come back and kill him. The applicant then punched Mr Edwards several more times to the face and kicked him about the body, cut the cord to the telephone and left. 8 The laceration above Mr Edwards' eye required suturing. He had swelling and bleeding to both eyes, severe swelling and pain to his back and possible kidney damage. As a result of the assault, he suffered poor eyesight requiring new glasses, dental trauma with several teeth either being knocked out or needing to be removed, hearing loss and interference with hearing in his right ear, a worsened sense of balance and chronic anxiety with an inability to sleep. 9 The applicant gave evidence in the sentencing proceedings that he had been drinking alcohol and smoking cannabis on the day of the offence. Subjective factors relating to applicant 10 The applicant was born on 7 June 1962 in Inverell. He was forty at the time of the offence. 11 The applicant had seven brothers and sisters. He was taken away from his mother when he was six weeks old, but returned to her care when he was three years old when she had married a non-aboriginal. The applicant described his stepfather as an alcoholic, who was abusive to his mother and physically abusive to the applicant and the other children. The applicant's mother died eleven years ago. His natural father was still alive and living at Guyra. The applicant had occasional contact with him. 12 The applicant gave evidence that he suffered racial discrimination at school. He was one of only two aboriginal children and they were sent out to the playground to clean up and do the gardening. His education was neglected and when he left in year 7 at the age of thirteen, he could not read or write. He was sent to a sheltered workshop, a place for handicapped people, even though he was not handicapped himself. He was told this was for "work experience". 13 The applicant left the sheltered workshop after about six months, worked in a foundry in Melbourne and then pursued seasonal rural work and other manual labour. 14 The applicant has three children. Two arose from one relationship and those children are now aged almost fifteen and twenty. The youngest, a girl, lives with her mother whilst the son has mostly lived with the applicant. The third child is a girl from another relationship, who is now about twelve. The applicant was in regular contact with her mother, who lives in Glen Innes. 15 The applicant acknowledged in his evidence that he was an alcoholic and had been since the age of thirteen. He started drinking from his stepfather's flagons when he was about five or six years old. He also took various forms of drugs such as "speed, smack, pills, pipe". Cannabis use started at the age of ten, heroin at about seventeen, then cocaine and in more recent times amphetamines. The applicant had given up drinking in the beginning of the 1990's, but had resumed in 1997 when under pressure from personal problems. 16 The applicant said that he did things when he was intoxicated that he had no control over and of which he would have no subsequent memory. The present offence was an example. He had been drinking and smoking all day. He said that this scared him. He did not do such things when he was sober. In the course of his evidence he said: "I'm out drinking and doing all these things you know like and at the end of the day through the grog, the drugs and the rest of the things, I've turned into my father you know, like my worst nightmare. Only thing is I don't abuse my child … I've turned into the person that I hated as a child you know". (Transcript, 1.11.02, p15.10) 17 The applicant said that he was interested in rehabilitation. He could not excuse his behaviour on account of alcohol or drugs. He wanted to find out why he behaved as he did when intoxicated. He had not found rehabilitation a realistic prospect in gaol because fellow inmates were obsessed with alcohol and drugs and what they were going to do in that regard when they were released. He had made an enquiry about a course at Bathurst Gaol but had missed the enrolment. 18 The applicant said that in the period leading up to the offence he had been "living rough" in an old sawmill in Glen Innes with a friend. It was the middle of winter and they were very cold and, both being alcoholics, they were drinking excessively. He was receiving social security payments, most of which went on alcohol and drugs and was obtaining food orders from St Vincent de Paul. 19 The applicant had no memory of the offence itself, but he accepted that he had assaulted Mr Edwards in the manner set out in the police brief. He acknowledged the wrongfulness of his actions and expressed his remorse for the unjustified harm he caused the victim. He said, in effect, that he was shocked at the realisation of what he had done. 20 The applicant said that his health was not good. He had hepatitis B, cirrhosis of the liver and diabetes. He denied having any mental problems. A report obtained on his behalf from Dr Hugh Jolly, a psychiatrist, dated 4 March 2003 concluded: "Mr Fields has serious personality problems, and would attract a psychiatric finding of "personality disorder". Presently, I can find no evidence of psychiatric illness although mild organic deficits cannot be ruled out. When intoxicated he is irritable and unpredictable as explained. It is important that efforts be made to rehabilitate towards continuing abstinence, notwithstanding a poor prognosis." Appeal Ground 1 – Sentence manifestly excessive 21 Whilst conceding the offence to be "very serious", it was submitted on behalf of the applicant that applying the statistics which were relevant to similar cases, the sentence was clearly excessive. The total sentence was only exceeded in 11 out of 273 similar cases (.4%) and the non-parole period was exceeded in only 6 of 273 cases (.2%). 22 The remarks on sentence of his Honour were criticised because his Honour referred to taking matters into account, but it was not clear how he did so. By way of illustration his Honour had referred to thirteen subjective features such as the applicant's age, background, upbringing, education, employment history, marital status, health, drug and alcohol use, character, plea, contrition and rehabilitation but had not indicated how he used these subjective matters. It was only in relation to contrition and the early plea of guilty that his Honour had made any express findings, ie that he accepted that the applicant was genuine in his expression of contrition and was entitled to a twenty five percent discount for his early plea of guilty. 23 The remarks on sentence were also criticised by reference to what his Honour said in relation to Fernando's case. The following passage was cited in argument: "As to the offender's background, upbringing and education, I am aware of the decision of the Court of Criminal Appeal in Fernando (1994) 76 A Crim R 58 at 62-3 as explained in Ceissman [2001] NSWCCA 73 and Pitt [2001] NSWCCA 156 and repeated in Fernando [2002] NSWCCA 28 per Chief Justice Spigelman at [64]-[67] and I have not overlooked what was said in those judgments. However, I cannot ignore the fact that the offender has come a long way since leaving home towards the end of 1975 and I cannot see that he can now blame his background, disturbed upbringing and limited education for his commission of the subject offences." (ROS 5) 24 That passage was challenged on the basis that the applicant was not seeking to blame his background, disturbed upbringing and limited education for his commission of the offence but rather that he was intoxicated at the time and that he behaved abnormally when heavily intoxicated. He became heavily intoxicated because he was an alcoholic and addicted to drugs. He became an alcoholic and a drug addict as a result of environmental factors associated with his upbringing. He was exposed to alcohol and drugs at an extremely young age when he was in no position to exercise any mature, rational or responsible choice about such matters. 25 The remarks on sentence were also criticised on the basis that his Honour had given undue weight to the applicant's previous convictions. It was submitted that it was superficial to observe that fifteen of the forty five offences "involved the use of violence" when the sentencing judge had no evidence as to what those convictions involved, particularly when six of the offences related to malicious damage to property. Similarly, his Honour's reference to "eight offences of assault" was criticised because one of those offences included "domestic violence" when there was no evidence as to what the nature of that domestic violence was. 26 In relation to the assault matters, it was pointed out that no offences of that kind had occurred after 1995 and that all of those offences had been dealt with in the Local Court. The present s95(1) offence was by far the most serious matter for which he had been before the courts. 27 The thrust of this submission was that his Honour had emphasised the aggravating features of the offence, but had not given due weight to the matters in mitigation. Consideration 28 The proper start point for a consideration of a sentence is the objective seriousness of the offence. In this case the objective features indicated that the offence was very serious indeed. His Honour identified the following: (i) The offence was planned, at least in relation to the intended robbery. (ii) Ms Cox was used to gain entry to the intended victim's flat. (iii) The attack upon the victim was vicious, unprovoked and unjustified by a strong, fit and relatively healthy forty year old man upon a weak and unwell sixty-one year old man. (iv) It included the offender kicking the victim when he was down and lying on the floor of his flat. (v) Severe injuries were caused to the victim's eyes and lower back so that the victim will suffer continuing permanent disability. (vi) The offence was committed in the victim's home. 29 Leaving aside aggravating and mitigating factors, the objective seriousness of the offence would justify a sentencing start point greater than 8 years. At most, statistics provide a guide to sentencing patterns but otherwise each sentence must depend upon its own facts. The range of statistics should not be regarded as indicating the top of the range. The top of the range is in fact the maximum sentence prescribed by the legislature (R v Hayes [2001] NSWCCA 410, R v Lao [2003] NSWCCA 315 at [32]). In this case the top of the range was 20 years. 30 Having identified the objective seriousness of the offence, the next step for his Honour was to balance aggravating features against mitigating features. His Honour did that in order to establish an appropriate start point for the sentencing process. (ROS 10-11) 31 There were significant aggravating features to this offence. It involved gratuitous cruelty, not just the malicious infliction of actual bodily harm. It also involved a knife and a threat to kill. The offence occurred whilst the applicant was in breach of a s12 bond. In that regard, the applicant had a history of alcohol related offences. He received the benefit of a suspended sentence in November 2001 conditional upon supervision and drug and alcohol counselling. At the time of this offence (which was also an alcohol related offence), the applicant had failed to observe that condition and was wanted for breach of his bond. 32 A further aggravating feature was the applicant's criminal record. There were forty-five offences covering a period of twenty-five years some of which, perhaps as many as fifteen, involved the use of violence. Included in that fifteen were eight offences of assault and one offence of assault occasioning actual bodily harm. The best that could be said of the applicant's criminal record was that all the offences committed since September 1995 had been driving offences. 33 By way of mitigation, his Honour had specific regard to the applicant's genuine contrition and the applicant's unfortunate background. This is clear from the following passage: "As to the second question, I must balance the features to which I have referred and, doing that, I have determined that the starting point is imprisonment for eight years. I had thought that a higher starting point might be appropriate but, having regard to what I have said about the offence and the offender, and having read the report of Dr Jolly which, to some extent, throws a different light upon the offender, I have determined that the appropriate starting point is imprisonment for eight years." (ROS 10-11) 34 Far from ignoring the problems associated with the applicant's alcoholism and drug addiction which themselves were products of his unfortunate background, his Honour took those matters into account in fixing as his start point, a sentence which favoured the applicant given the objective seriousness of the offence with its significant aggravating features. The complaint that in some way his Honour failed to properly use the evidence of the applicant's unfortunate background is not made out. 35 Similarly, the criticism of his Honour's treatment of the applicant's criminal record is not made out. Although his Honour could have used the record as an aggravating factor which pointed towards a heavier sentence, he in fact treated the applicant's antecedents as being matters which did not assist the applicant. This approach was, if anything, generous and did not disadvantage the applicant. 36 His Honour arrived at his start point for the sentencing process of 8 years after appropriately balancing the significant aggravating features of the offence against those in mitigation. Thereafter he applied the twenty five percent discount to which he found the applicant was entitled as a result of his early plea of guilty. The resulting process of fixing a head sentence of 6 years with a non-parole period of 4 years followed logically from that process of reasoning. 37 The applicant's submission that in his analysis of the facts his Honour emphasised matters adverse to the applicant whilst not giving due weight to matters favourable to him, is simply not made out. On the contrary, matters such as the applicant's poor criminal record and bleak prognosis for rehabilitation could well have justified a longer sentence having regard to the principles of general and personal deterrence and protection of the public. 38 In my opinion it has not been established that the sentence is manifestly excessive. Accordingly I propose the following orders: (i) Leave to appeal granted. (ii) Appeal dismissed. 39 BRYSON JA: I agree with Hoeben J. 40 BARR J: I also agree. 41 BRYSON JA: The order of the Court is (i) leave to appeal granted; (ii) appeal dismissed. ********** 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. 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