R v Jione [2007] NSWCCA 170

New South Wales Court of Criminal Appeal

CITATION: R v Jione [2007] NSWCCA 170

HEARING DATE(S): 12 June 2007

JUDGMENT DATE: 21 June 2007

JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Simpson J at 22

DECISION: Appeal allowed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - MALICIOUSLY INFLICTING GRIEVOUS BODILY HARM WITH INTENT - SENTENCE - VICTIM REDUCED TO VEGETATIVE STATE WITHOUT PROSPECT OF RECOVERY - ASSESSMENT THAT OFFENCE IN MIDDLE RANGE OF SERIOUSNESS CATEGORY MANIFESTLY WRONG - CROWN APPEAL AGAINST SENTENCE ALLOWED - RESPONDENT RESENTENCED

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Gibson v The Queen (1991) 172 CLR 353 CASES CITED: R v H [1980] 3 A Crim R 53 R v Way (2004) 60 NSWLR 168

PARTIES: Regina v Steven Jione

FILE NUMBER(S): CCA 2007/656

COUNSEL: T. Thorpe (Crown/Appellant) J. Stratton SC (Respondent)

SOLICITORS: S. Kavanagh (Crown/Appellant) S. O'Connor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3239

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 25/01/07

IN THE COURT OF CRIMINAL APPEAL 2007/656

HODGSON JA GROVE J SIMPSON J

Thursday 21 June 2007 REGINA v STEVEN JIONE Judgment

1 HODGSON JA: I agree with Grove J. 2 GROVE J: This is a Crown appeal asserting the manifest inadequacy of a sentence imposed on the Respondent by Ashford DCJ at Campbelltown District Court. The Respondent pleaded guilty to a single count of maliciously inflicting grievous bodily harm with intent so to do contrary to s 33 of the Crimes Act 1900. The maximum prescribed penalty for this offence is imprisonment for twenty five years. A standard non-parole period of seven years is scheduled in the table within Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999. Her Honour sentenced the Respondent to imprisonment consisting of a non-parole period of five years and a balance term of three years. 3 The following summary of the facts is taken from a written submission by the Crown which Senior Counsel for the Respondent acknowledged that his client "generally" accepted. There was no identification of any detail within it which was not accepted: "..on the evening of 7 July 2005 the respondent and the victim, Colin McIntosh, were drinking separately at the Ingleburn Hotel. At a time between about 11.30 pm and 12.30 am the respondent and the victim were observed arguing. A witness saw the respondent push the victim before punching him a number of times in the head. The victim fell to the ground and did not move. The witness tried to calm the respondent down and the respondent walked back into another area of the hotel. At about 12.30am another witness observed a scuffle taking place in the hotel car park. The witness saw the respondent standing over the victim, punching him in the head and kicking his body. The victim did not retaliate. After the assault the victim got to his feet, stumbled and walked away. As he did so the respondent taunted him and yelled in his direction. The respondent walked over to where the victim was standing and punched him. The witness saw the victim on the ground with the respondent kneeling over him. The respondent punched the victim about eight times to the facial area. The witness, a female, attempted to assist the victim by grabbing the respondent's shoulder. As the respondent moved his arm back to strike the victim again his elbow hit the witness in the cheek. The respondent then punched the victim in the head at least three more times. The witness yelled at the respondent in an attempt to prevent him further striking the victim. At the urging of the witness, some bystanders intervened and grabbed the respondent and dragged him away. The witness helped the victim to his feet. She asked the victim if he was all right and he replied, "Yeah" and started walking away. The respondent was taken back inside the hotel and the victim was seen walking away from the hotel. The female witness left the hotel a short time later with some friends. As the group approached the corner of Nardoo and Oxford Streets they saw the victim lying on the ground. He was in a distressed and unconscious state, not moving and gasping for air. An ambulance was called and the victim was taken to Liverpool Hospital. The respondent had been observed following the victim and when police arrived witnesses directed them to the Ingleburn Railway Station where they arrested the respondent. On admission to hospital the victim was assessed as being 3 on the Glasgow coma scale. The treating doctor observed a left parietal subgaleal haematoma and shoe sole imprints on both sides of the victim's face. A CT scan revealed a significant and acute subdural haematoma and the victim required an immediate craniectomy to relieve pressure on his brain. After spending an extensive period in the Intensive Care Unit on life support, the victim was moved to the Brain Injury Unit. The report of Dr Hodgkinson dated 21 August 2006 (part of Exhibit A) indicated that on discharge from the Brain Injury Rehabilitation Unit the victim remained severely impaired. He required total nursing care. He was incontinent of urine and faeces. His nutritional requirements were being met by intragastric feeds although he was capable of small amounts of oral modified diet and thickened fluids. Dr Hodgkinson indicated that the victim remained fully dependent in mobility and personal care. Further improvement in level of care is unlikely. His level of communication was severely impaired. He is likely to require full time nursing care indefinitely. He is unlikely to ever regain the ability to reach a normal level of communication ability and certainly would be incapable of employment in any capacity. In summary the victim, a father of three, has been diagnosed as suffering comprehensive brain damage. He is able to breathe unassisted but remains attached to a feeding tube. He is expected to remain in a vegetative state indefinitely. His prognosis is poor and he is likely to be totally reliant on nursing home care for the remainder of his life. He has a significantly reduced life expectancy." 4 The Respondent was born in Fiji on 6 September 1981. He came to Australia with his mother at the age of sixteen and undertook a further year (Year 11) of secondary education. He commenced, but did not complete, an apprenticeship as a mechanic and at the time of the offence had been working for about three months as a furniture removalist. He had a poor relationship with his mother and, following her marriage, also with his stepfather. He has never met his biological father. He left home at about the age of twenty two or twenty three when he commenced a de facto relationship, of which a child has been born. 5 In 2004 his partner took out an apprehended domestic violence order against him, but in January 2005 at Campbelltown Local Court he was convicted of contravening that order, assault (of that partner) and maliciously damaging property. For the lastmentioned he was fined $500 and for the other two offences he was placed on a bond, with conditions, to be of good behaviour for twelve months. The bond was current when the subject offence was committed in July 2005. He has no other convictions. 6 A report by Mr Taylor, a psychologist, was before the sentencing court. The history which the Respondent gave described starting to drink alcohol when aged fourteen years, heavy drinking by the time eighteen years had been attained and being intoxicated "from Wednesday night to Saturday night", a pattern maintained until his arrest. He used cocaine from the age of nineteen every weekend if he could afford it. He partook of ecstasy for about twelve months until he was hospitalized with a liver problem. At aged twenty two he had begun to use "ice" (an amphetamine) and a liquid form of it known as "base". 7 The Respondent gave evidence at the sentencing proceedings and testified that he had consumed "base" on the night of the offence as well as a quantity of beer. He was seen to be consuming VB stubbies and he admitted drinking eight to nine "beers". When arrested he was unsteady on his feet and smelled of alcohol. Her Honour referred to evidence in reports of Dr Perl and Professor Starmer concerning the likely effects of his ingestions but she expressed no particular finding. She observed that the Respondent considered himself moderately affected by these substances. 8 The Crown complaint is that her Honour erred in assessing the offence as falling within the mid range of objective seriousness of such an offence. Her Honour's remarks on sentence expressed that conclusion in these terms: "On looking to the objective range of seriousness of this offence I find it to be in the mid range noting the action to be spontaneous with no degree of planning involved." 9 At the outset of her remarks, her Honour had observed, without further comment, that "the maximum sentence for the offence is twenty five years imprisonment". 10 The reference to "mid range" had an apparent relationship to her preceding statement: "The standard non parole period is seven years and in the light of his plea of guilty I use this as a bench mark in sentencing him." 11 As above stated, the prescription of standard non-parole period is to be found in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act. Section 54A (2) provides that the standard non-parole period represents the non-parole period for an offence in the middle of the range of seriousness for the particular offence. Section 54B (4) obliges the giving of reasons for increasing or reducing the standard non-parole period. Her Honour reduced the standard non-parole period but did not express reasons, however, s 54B (5) preserves the validity of sentence where there has been such an omission. 12 It has been established that the standard non-parole period should be understood as having been specified for mid range offences where there has been conviction after trial: R v Way (2004) 60 NSWLR 168, but the prescription continues to provide a benchmark for sentencing when there has been a guilty plea. But it is not a sole benchmark and there is nothing in Part 4 Division 1A to suggest that the statutory maximum ceases to provide a reference for sentence assessment. That maximum reveals a policy of the Legislature relevant to penalty for particular offence: Gibson v The Queen (1991) 172 CLR 353 at p 364 and has been described as a reflection of public perception of seriousness: R v H [1980] 3 A Crim R 53 at p 65. 13 The enquiry as to where an offence lies in the range needs to take into account the actus reus, the consequences of the conduct and any factors which might properly be said to have impinged on the mens rea of an offender: Way at p 186. 14 Although her Honour referred to the consequence of "catastrophic injury" to the victim, an assessment that the offence should be categorized in the mid range is manifestly wrong. In the recounting of facts it can be observed that the actus reus emerged from more than one attack on the victim despite attempts by bystanders to restrain the Respondent. It is submitted on his behalf that he was not shown to have "stomped" on the victim but it is difficult to accept that contention in the light of the shoe marks detected by medical attendants on his face. 15 The Crown submission that the injuries suffered by the victim were as serious as they could be suffered by anyone short of death has a compelling force. This offence was well above the category of mid range and in the category of high seriousness. 16 Although her Honour had acknowledged the maximum penalty prescribed, the content of her remarks reveals a focus upon the standard non-parole period as a "benchmark" without further reference to the other important benchmark of that prescribed maximum. I am unpersuaded that it is shown that this is an appropriate occasion for the exercise of the residual discretion of this Court to dismiss a Crown appeal against a manifestly inadequate sentence. The appeal should be allowed and the sentence quashed and this Court should proceed to resentence. 17 Earlier reference has been made to subjective matters concerning the Respondent. An affidavit sworn by him expresses his contrition and remorse and I see no reason not to accept his expressions. The affidavit also reveals the steps which have been taken by the Respondent to address his drug and alcohol problems as well as anger management. The outlook appears positive and includes recognition of the need for, and a desire for, rehabilitation. 18 Although the matter had been listed to confirm a trial date in the District Court when the Respondent asked to be arraigned and offered the plea of guilty, her Honour found that the plea was offered at the earliest opportunity. That would appear to be incorrect. She found that the plea should attract a discount of 25 percent. I would, despite the apparent error, reapply that finding. I would also vary the relationship between non-parole period and balance term in favour of the Respondent for the reasons which her Honour expressed, in particular, the need for ongoing rehabilitation and the vulnerability of the Respondent which arises from his background and upbringing. 19 I formally record the reason for departing from the standard non-parole period as the assessment that the offence lies above the middle of the range of seriousness for such offences. 20 Excluding the discount for the plea of guilty, I would assess an appropriate sentence for this offence, taking into account objective and subjective factors, at sixteen years imprisonment. Applying the discount for the plea of guilty the term should be calculated as twelve years imprisonment. That result gives appropriate weight to the recognized practice of exercising restraint when sentencing after a successful Crown appeal. 21 I propose the following orders: