New South Wales Court of Criminal Appeal CITATION: Mackey v Regina [2006] NSWCCA 254 HEARING DATE(S): 2 August 2006 JUDGMENT DATE: 25 August 2006 JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Hislop J at 3 DECISION: 1. Application for leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Criminal law - Sentence - Malicious wounding with intent to do grievous bodily harm - Standard non parole period - Delay - Extra curial punishment - Sentence not manifestly excessive. LEGISLATION CITED: Crimes Act 1900 - s 33 Crimes (Sentencing Procedure) Act 1999 - s 54A(2), Pt 4 Div 1A R v Daetz (2003) 139 A Crim R 398 CASES CITED: R v Todd (1982) 2 NSWLR 517 R v Way (2004) 60 NSWLR 168 PARTIES: Applicant - Ryan Joseph Mackey Respondent - Regina FILE NUMBER(S): CCA 2006/837 COUNSEL: Applicant - Mr C Craigie SC Respondent - Ms J Dwyer SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1229 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 15 September 2005 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/837 BEAZLEY JA HULME J HISLOP J 25 August 2006 Ryan Joseph MACKEY v REGINA Judgment 1 BEAZLEY JA: I agree with Hislop J. 2 HULME J: I agree with Hislop J. HISLOP J: 3 On 16 December 2004 the applicant was found guilty by a jury of a charge that, on 11 July 2004 at Pyrmont NSW, he maliciously wounded Christopher Julian with intent to do grievous bodily harm contrary to the Crimes Act 1900 s 33. The maximum penalty for such an offence is 25 years imprisonment. 4 On 15 September 2005 Marien DCJ sentenced the applicant for that offence to a non parole period of 8 years imprisonment commencing on 2 September 2004 and expiring on 1 September 2012. The total sentence imposed was 10 years and 8 months imprisonment commencing on 2 September 2004 and expiring on 1 May 2015. 5 The objective facts were found by his Honour as follows: The victim, Christopher Julian, was at the Pyrmont Bridge Hotel, Pyrmont, with friends Lionel Nathan and Angie Te Tomo at about 5am on Sunday 11 July 2004. At about that time Mr Julian walked through the main bar area towards the men's toilets situated at the rear of the hotel. The bar was crowded and whilst walking through the bar Mr Julian walked past the offender who, at the time, was holding a schooner glass of beer in each hand, having just purchased them at the bar. As Mr Julian walked past he accidentally bumped the offender, which resulted in the offender spilling some beer. Some verbal abuse then passed between the offender and Mr Julian. Mr Julian attempted to keep walking towards the toilets, however, the offender continued to abuse him. The offender then became aggressive towards Mr Julian and stood very close to him. Mr Julian then put his right hand on the offender's chest and pushed him slightly in an attempt to create some distance between himself and the offender. At that moment the offender swung his right hand at the left side of the victim's face and the offender was still holding a schooner glass at the time. The glass and the offender's right hand impacted with the left cheek and left eye area of Mr Julian. This caused severe lacerations to his face which bled profusely … In an immediate reaction to being hit in the face Mr Julian punched the offender once to the face. At that moment security personnel intervened and the offender was escorted from the premises. 6 As a result of the assault Mr Julian required approximately 40 stitches to his left cheek, left eyebrow and left eyelid. He has been left with residual scarring described as "substantial and prominent". His Honour found that at the time the offender struck Mr Julian with the glass he intended to inflict serious bodily injury to Mr Julian's face. 7 The applicant has sought leave to appeal against sentence on the following grounds: 1. His Honour erred in law in determining whether the standard non-parole period was to apply, in particular as to the process of classifying the offence as in the mid-range of seriousness. 2. His Honour erred in failing to consider the impact of delay in bringing the sentence proceedings to finality. 3. His Honour erred in not having proper regard to the issue of extra curial punishment, relating to an assault upon the applicant immediately after the offence. 4. The sentence is manifestly excessive. These grounds are considered hereunder. Ground One - His Honour erred in law in determining whether the standard non-parole period was to apply, in particular as to the process of classifying the offence as in the mid-range of seriousness. 8 The subject offence is contained in the Table to Part 4 of Division 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Act") and attracts a standard non parole period of 7 years imprisonment. 9 Section 54A(2) of the Act provides: (2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division. 10 The provisions of Division 1A were considered by this Court in R v Way (2004) 60 NSWLR 168. In that case the Court said: [117] In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing Judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?" [118] The question will be answered by considering, i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid-range of seriousness for an offence of the relevant kind. ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3) and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1). [119] Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. [120] Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 11 His Honour, in his Remarks on Sentence, referred to paragraphs 117 and 118 of Way. He then proceeded to assess the objective seriousness of the offence by reference to the nature of the injury and the nature and circumstances of the offence. He concluded his review of the objective seriousness with the following words: Taking all of those matters into account I am of the view the objective seriousness of the offence falls slightly above the mid range of seriousness for offences of this kind. I must also take into account relevant subjective features pertaining to the offender. 12 In the course of his review of the objective seriousness his Honour said: I also take into account that the offence involved an unprovoked attack by the offender on a stranger. However I also take into account as a mitigating factor that in my view the offence was a spontaneous and unplanned act resulting from a sudden and violent outburst of anger at a time when the offender was intoxicated. 13 It was submitted for the applicant that his Honour, by his reference to the unprovoked attack and that it was spontaneous and unplanned, erroneously merged the second of the considerations with the first in determining whether the mid range of seriousness was constituted in the offence. It was also submitted his Honour in his review of objective seriousness referred to the offence occurring whilst the applicant was on parole. The latter appears to be a misconception, the reference to the fact that the applicant was on parole at the time of the offence was made by his Honour after he had completed his review of objective seriousness and was considering subjective factors pertaining to the applicant. 14 I do not accept the applicant's submission. In my opinion the fact that the offence was unprovoked, spontaneous and unplanned properly falls for consideration in the assessment of the objective seriousness of the offence see Way particularly at paragraphs 85 – 88. Ground Two - His Honour erred in failing to consider the impact of delay in bringing the sentence proceedings to finality. 15 The applicant was found guilty on 16 December 2004. By consent the matter then was adjourned for sentence on 28 January 2005 and a pre sentence report ordered. On the adjourned date a further adjournment was sought by the applicant on the basis a psychiatric assessment had been sought but could not be arranged in time. The matter was adjourned to 25 March 2005. It was next mentioned before Hosking DCJ on 22 April 2005 as, in the interim, the trial Judge, Latham DCJ, had been appointed a Judge of the Supreme Court of New South Wales. The parties agreed that as another Judge would have to deal with the matter and a transcript would be required the matter should be adjourned to 20 May 2005. The matter then came before the sentencing Judge on 8 July 2005 when the transcript and other documents were supplied to his Honour. The sentencing hearings took place on 15 and 29 July and sentence was pronounced on 15 September 2005. 16 It was submitted for the applicant that fairness to him required consideration be given to the fact that during the period of delay between conviction and sentence he had been left in a state of uncertain suspense as to what would happen to him when in due course he came to be sentenced (c/f R v Todd (1982) 2 NSWLR 517 at 519) and that his Honour erred in failing to consider this matter and reflect it in the sentencing outcome. 17 I do not accept this submission. The delay in Todd was a delay measured in years. In the present case the delay was occasioned by essentially unavoidable matters and consent adjournments. The relevant delay from the mention on 22 April 2005 to the sentencing hearing was approximately 3 months. There was no evidence the applicant was left in a state of uncertain suspense as to what would happen when he came up for sentence. He would have been well aware that he would be sentenced to a term of imprisonment. He was not prejudiced as to the commencement of his sentence as it was backdated to the day he returned to custody to serve the balance of the previous sentence. 18 I note that no submission was made by the applicant's counsel at the sentencing hearing that any deduction should be made by reason of delay between conviction and sentence. In my opinion, no error has been demonstrated. Ground Three - His Honour erred in not having proper regard to the issue of extra curial punishment, relating to an assault upon the applicant immediately after the offence. 19 His Honour found that, following the wounding of Mr Julian, he and Mr Nathan walked out to the front of the premises where a scuffle took place between Mr Nathan and the applicant. In this scuffle the applicant sustained cuts to the right hand and a fracture of the left orbital wall. The fracture was undisplaced. 20 Although his Honour made findings as to the injury to the applicant he did not refer to it as a matter which he took into account in determining sentence. 21 It was submitted on behalf of the applicant that the assault upon him constituted a relevant extra curial punishment, and that his Honour had erred in not considering this and reflecting it in the sentence. 22 In R v Daetz (2003) 139 A Crim R 398. James J (with whom Tobias JA and Hulme J agreed), after review of the relevant authorities, held: while it is the function of the Courts to punish persons who have committed crimes, a sentencing Court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra curial punishment the offender has suffered, because the Court is required to take into account all material facts and is required to ensure the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra judicial punishment attracts little or no significant weight. 23 The serious loss or detriment sustained in Daetz was a severe beating resulting in a fractured skull, and bilateral extra dural haemorrhage requiring a craniotomy. This is to be contrasted with the applicant's situation. The applicant was treated at St Vincent's Hospital Emergency Department and allowed to leave. He gave evidence at the sentencing hearing that the injury healed itself within a fortnight. In my opinion the injury to the applicant did not result in a "serious loss or detriment" such as to require it be weighed in the sentencing process. His Honour did not err in not taking it into account in sentencing the applicant. Ground Four - The sentence is manifestly excessive. 24 It was submitted for the applicant that the objective seriousness of the matter did not support a finding at the mid range and that the sentence was manifestly excessive. 25 His Honour described the assault upon Mr Julian as a cowardly, brutal and unprovoked attack. He was satisfied on the evidence that the victim was not the aggressor at any time nor was he persuaded that the attack was the result of provocative conduct on the part of Mr Julian. His Honour considered the offence one of extreme seriousness and that it was a matter of pure good luck that far more serious injuries were not suffered by Mr Julian as he could well have lost his left eye in the attack. The offence was committed whilst the applicant was on parole. 26 The applicant was born on 13 February 1977. He was 26 years of age at the time of the commission of the offence. His record comprised convictions in 1997 on three counts of manslaughter for which he was sentenced to 8 years and 1 month imprisonment with a non parole period of 6 years and 1 month. The convictions related to the death of a woman and two children aged 11 and 7 in a fire deliberately lit in a house in Glebe on 7 December 1995. The applicant was a willing participant in that enterprise. Apart from the convictions for manslaughter the applicant had only minor matters in the Children's Court to which the sentencing Judge had no regard in the sentencing exercise. 27 His Honour noted that the applicant abused alcohol and used drugs. However the issue of intoxication was not relied on in the sentencing proceedings as a mitigating factor but rather as placing the offence in context and also went to the issue of the spontaneity and lack of planning of the offence. His Honour held the offence was a spontaneous and unplanned act resulting from a sudden and violent outburst of anger at a time when the applicant was intoxicated. His Honour considered psychiatric reports which were placed before him and set out at considerable length details of the content of those and a probation report which detailed the applicant's history. He also referred to a number of positive character references relating to the applicant. 28 His Honour considered the offence fell slightly above the mid range of seriousness. The determination of this question involved the exercise of judicial discretion. In my opinion the finding was open to his Honour and should not be interfered with by this Court. 29 His Honour found no special circumstances and considered the statutory parole period was sufficient to meet the rehabilitation needs of the applicant. In my opinion the sentence imposed by his Honour was not manifestly excessive. No less severe sentence is warranted in law. Orders 30 I propose the following orders: 1. Application for leave to appeal granted. 2. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.