New South Wales Court of Criminal Appeal CITATION: McArthur v Regina [2006] NSWCCA 200 HEARING DATE(S): 23 June 2006 JUDGMENT OF: Giles JA at 25; Grove J at 1; Hidden J at 26 EX TEMPORE JUDGMENT DATE: 06/23/2006 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ARMED ROBBERY CAUSING GRIEVOUS BODILY HARM WITH OFFENSIVE WEAPON - FINDING INJURY CAUSED EMOTIONALLY AND PHYSICALLY SUBSTANTIAL - NO BREACH OF RESTRICTION IN TREATING ELEMENT OF CRIME AS AGGRAVATING FACTOR - SENTENCING JUDGE ELABORATING UPON THE EXTENT OF HARM - OFFENDER ON PAROLE - OBJECTIVE SERIOUSNESS HIGH - SEVERE SENTENCE WARRANTED - NO ERROR IN ASSESSMENT LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Amohanga & anor 2005 155 A Crim R 262 R v Campbell [2000] NSWCCA 157 CASES CITED: R v Fidow [2004] NSWCCA 172 R v Hamlin unreported NSWCCA 5 May 1997 R v Teoka & Ors [2004] NSWCCA 373 R v Weldon & Carberry (2002) 136 A Crim R 55 PARTIES: Scott Alexander McArthur v Regina FILE NUMBER(S): CCA 2006/343 COUNSEL: M. Dennis (Applicant) J. Girdham (Crown/Respondent) SOLICITORS: S. O'Connor (Applicant) S. Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0604 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 22 July 2005 LOWER COURT MEDIUM NEUTRAL CITATION: unreported IN THE COURT OF CRIMINAL APPEAL 2006/343 GILES JA GROVE J HIDDEN J 23 June 2006 SCOTT ALEXANDER McARTHUR v REGINA Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Blackmore DCJ at Sydney District Court. The applicant pleaded guilty to a count of robbery whilst armed with an offensive weapon with which he inflicted grievous bodily harm upon the victim. The available prescribed maximum penalty for such an offence is twenty five years imprisonment. His Honour sentenced the applicant to imprisonment consisting of a non parole period of nine years and a balance term of three years commencing on 20 May 2005 upon which date the applicant completed serving a balance of parole in respect of an unrelated offence. He was subject to parole at the time of the commission of the instant offence. 2 The facts of the offence were agreed and reduced to writing. His Honour recited them at length in his remarks on sentence and it suffices for present purposes to epitomise them. 3 The victim was a young man aged twenty six years who had travelled from Britain to Australia on a working holiday. At about 9.30 pm on a Sunday evening he had gone to the vicinity of Petersham Railway Station to use a public telephone in order to ring his parents in Britain. He could see that the particular telephone was being used so he walked along the railway concourse and sat on a wall and while he was there he commenced to use a mobile phone to speak to his girlfriend in Sydney. 4 The applicant came up behind him armed with an iron bar and struck him in the head and face area. The applicant stole the mobile phone and decamped. The victim was seen and an ambulance called. He was treated in emergency at Royal Prince Alfred Hospital. He was found to have a large fracture from the right orbit through the nasal bones to the left side and operation was performed consisting of insertion of four plates across the fracture from left to right skull. 5 A little less than two hours after the offence the applicant was spoken to by police at Lewisham Railway Station where they found him to be aggressive and appearing to be intoxicated. Not aware of what had occurred at Petersham the police attached no particular significance to their finding what was, in fact, the victim's mobile phone in the possession of the applicant. Due to his state of intoxication police drove him to his home. 6 The product of video surveillance cameras was viewed and the applicant identified as the perpetrator of the offence at Petersham. A search warrant was executed and the applicant arrested and taken into custody. 7 It is significant to note his Honour's finding that a proper appreciation of the seriousness of the offence could not be obtained without viewing a video, which actually captured the offence being committed. His Honour described the victim sitting on steps leading down to the railway platform and the applicant is shown walking past him and then returning to strike him about the head. This caused the victim to slump forward and the applicant is seen running from the scene skipping down the steps and departing the railway station. Although his Honour noted what was said about the applicant being heavily intoxicated, he noted that this did not appear to impede him from making his escape. 8 His Honour made findings concerning the residual damage to the victim which findings have not been the subject of challenge. He found that it appears that the plates inserted in the victim's face could not now be removed without risking further nerve damage. He has great discomfort in the left eye which constantly waters, has broken teeth and sinus difficulties. He suffers nightmares, sleep deprivation and a loss of confidence particularly about going out in the evening. He has had difficulty in obtaining and holding a job which has, in its turn, brought a loss of independence. His Honour categorized the effects of these injuries as catastrophic. 9 The applicant is also a young man aged twenty seven years. As already mentioned he was on parole at the time of this offence, having been released from prison after serving a sentence for driving whilst disqualified. He had not been employed for some three or four years although he had previously done some labouring work in the building industry. To Dr Westmore, a psychiatrist, whose report was in evidence, he reported that he had not worked because he had been drinking excessive amounts of alcohol in association with which there were episodes of aggression. Dr Westmore noted that previous rehabilitation attempts had been unsuccessful. His Honour found that nothing in the material provided by Dr Westmore indicated a relationship between the commission of the offence and matters in his report, to which his Honour referred. Neither is his Honour's finding in that regard the subject of challenge. It is not necessary to repeat the detail set out in his Honour's remarks on sentence. The applicant has a substantial prior record but there is nothing on it which approaches the seriousness of the present offence. 10 The applicant relies upon two grounds of appeal, the second asserting that the sentence was manifestly excessive and the first asserting specific error by the sentencing judge. I turn to that ground. 11 In the course of his remarks on sentence and with reference to a provision in the Crimes (Sentencing Procedure) Act 1999 his Honour said: "With respect to s 21A(2)(g) to my mind the evidence establishes that the harm done to the victim here, both physical and emotional, was substantial". 12 The contention of the applicant is that as it was an element of the offence that grievous bodily harm had been caused to the victim, his Honour in taking the matter stated into account had breached the statutory proviso that a court is not to have additional regard to a defined aggravating factor. The subsection stipulates "the injury, emotional harm, loss or damage caused by the offence was substantial". 13 By definition, grievous bodily harm is really serious physical injury. His Honour's reference to substance was clearly an indication that, in a sense of grading grievous bodily harm, the injury suffered by the victim was of a high order. The emotional harm as mentioned in the subsection is not necessarily an element of grievous bodily harm, the pertinent element of the offence. 14 His Honour's expression and approach reveal no error. 15 The second ground of appeal is sought to be supported by reference to cases which it is contended manifest examples of criminality at the higher end of the range for the same or similar offences. There can be no doubt that the applicant's offence should be categorized as one in the higher echelon of objective seriousness. The Crown has accepted the challenge implied by the case references and argued that in each case there are distinguishable factors. In my view, the Crown has succeeded in its exercise. 16 I refer briefly to the matters raised on behalf of the applicant. 17 R v Fidow [2004] NSWCCA 172 was a case of robbery in company. Undoubtedly the injury to the victim was horrific but it was noted that it was not possible to be satisfied beyond reasonable doubt that it was that offender who had been directly violent to the victim. A non parole period of eight years imprisonment and balance term of three years had been imposed. 18 In R v Teoka & Ors [2004] NSWCCA 373 there was again an offence of robbery in company. These were appeals by offenders complaining that imposition was manifestly excessive and the appeals were rejected on that ground and were successful only to the extent that adjustments were made in relation to parity between offenders. 19 R v Weldon and Carberry (2002) 136 A Crim R 55 and R v Campbell [2000] NSWCCA 157 were both Crown appeals and it is apparent in both those cases that the sentences were less than otherwise would have been imposed having regard to particular considerations that attach to such appeals. 20 R v Hamlin unreported NSWCCA 5 May 1997 was a case in which pre sentence custody needed to be taken into account and adjustment was relevant only to specification of non parole period. 21 In my view these cases, neither individually nor in combination, demonstrate error on the part of the sentencing judge. The Crown has drawn attention to R v Amohanga & Anor 2005 155 A Crim R 262. It is fortifying of the Crown submission. 22 His Honour found that the offence here clearly fell well above the middle range of objective seriousness. That finding was not erroneous and I would respectfully endorse it. His Honour correctly had reference to the seriousness with which Parliament regards such offences by the prescription of an available maximum which is set at the highest level of finite years, exceeded only by offences which carry possible life imprisonment. 23 His Honour is not shown to have erred in the application of principle, nor is his assessment shown to be outside the range of his sound exercise of discretion. 24 I would grant leave to appeal against sentence but dismiss the appeal. 25 GILES JA: I agree with Grove J. 26 HIDDEN J: I also agree. 27 GILES JA: The orders of the Court will be as proposed 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. 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