New South Wales Court of Criminal Appeal CITATION: Wright v R [2008] NSWCCA 282 HEARING DATE(S): 21/11/08 JUDGMENT DATE: 15 December 2008 JUDGMENT OF: Tobias JA at 1; Kirby J at 2; Hall J at 36 DECISION: (1) Leave to appeal granted. (2) The appeal is dismissed. CATCHWORDS: Criminal Practice & Procedure - maliciously inflicting grievous bodily harm - use of glass/bottle as weapon - history of similar offences - finding of continuing disregard of the law - whether sentence manifestly excessive. LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment Veen v The Queen (No 2) (1987-1988) 164 CLR 465 R v Steeden (NSW CCA, unreported, 19/8/1994) R v Woodhouse (NSW CCA, unreported 20/12/1996) CASES CITED : R v McAdam (NSW CCA, unreported, 29/9/1997) R v Rowe (NSW CCA, unreported, 10/12/1997) R v Mackey [2006] NSWCCA 254 Morris v R [2007] NSWCCA 127 R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505 PARTIES: Damien John Wright (App) Regina (Resp) FILE NUMBER(S): CCA 2007/15235 COUNSEL: C Smith (Appl) N Noman (Resp/Crown) SOLICITORS: S O'Connor (LAC - Appl) S Kavanagh (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11/0558 LOWER COURT JUDICIAL OFFICER: Solomon DCJ LOWER COURT DATE OF DECISION: 8/2/08 IN THE COURT OF CRIMINAL APPEAL CCA 2007/15235 TOBIAS JA KIRBY J HALL J Monday 15 December 2008 Damien John WRIGHT v REGINA Judgment 1 TOBIAS JA: I agree with Kirby J. 2 KIRBY J: On 2 October 2007, Damien John Wright (the applicant) was arraigned before Solomon DCJ and a jury upon an indictment charging the following offences: Count 1: That on 28 October 2006, he maliciously inflicted grievous bodily harm with intent to do so upon Joel Fairfull, contrary to s 33 of the Crimes Act 1900 ("the Act") (maximum penalty: 25 years imprisonment with a standard non parole period of 7 years). Count 2: In the alternative - That on 28 October 2006, he maliciously inflicted grievous bodily harm upon Joel Fairfull, contrary to s 35 of the Act (maximum penalty: 7 years imprisonment). 3 On 18 October 2007, the jury returned a verdict of not guilty on Count 1, but guilty on Count 2. 4 On 8 February 2008, Solomon DCJ sentenced the applicant to a total term of 6 years imprisonment (9.11.2006 to 8.11.2012), made up of a non parole period of 4 years (9.11.2006 to 8.11.2010), with an additional term of 2 years (9.11.2010 to 8.11.2012). The applicant seeks leave to appeal against that sentence. Notice of appeal. 5 The notice of appeal relies upon a single ground expressed in these terms: "1. The sentence is manifestly excessive." The incident. 6 Solomon DCJ, in his remarks on sentence, summarised the background to the incident in these words: (ROS 1/3) "The offender met an acquaintance by the name of 'Mark' at about 7pm on 27 October 2006 at Central Railway Station. The offender and 'Mark', at about 8pm, attended a hotel in the Surry Hills area where they remained for about five and a half hours. During their time at the hotel both the offender and 'Mark' consumed a quantity of alcohol. Joel Fairfull ('the victim') on 27 October 2007, at about 11.30pm met a number of friends, including a man by the name of Daniel Falzon at the Slip Inn Hotel in the city where he consumed a quantity of alcohol. At about 2am on 28 October the victim and Falzon met two sixteen year old girls, Veronica … and Chantelle … , outside the nightclub section of the Slip Inn Hotel. Veronica … gave the victim her telephone number. At about 2am on 28 October 2006 the offender and 'Mark' left the Surry Hills hotel and attended upon the Criterion Hotel in Park Street, City. Between about 2.15am and 2.45am Veronica … and Chantelle … also attended upon the Criterion Hotel where they fortuitously met up with the offender and 'Mark'. The offender had met Chantelle … on two previous occasions and Veronica … on one previous occasion. Whilst at the hotel the two girls, the offender and 'Mark' consumed alcohol and the two girls engaged in flirtatious behaviour with the offender. At about 2.45am on 28 October the victim telephoned Veronica … and made arrangements to meet her at the Criterion Hotel. During the course of this conversation the victim heard a male voice on the phone say 'Fuck off'. Veronica … later telephoned the victim and told him there was nothing to worry about. The victim and Falzon made their way to the Criterion Hotel. On their way to the hotel the victim said words to Falzon to the effect of 'Get ready, something may happen, there may be a fight'." 7 His Honour then described what happened once the victim and his friend arrived at the Criterion Hotel. He said this: (ROS 3) "Between about 2.45am and 3am the victim and Falzon arrived at the Criterion Hotel where they met up with the offender, 'Mark' and the two girls. Eventually all six of them sat at a table. Whilst seated at the table the victim handed Chantelle … a bundle of money. A short time later Falzon said to 'Mark', words to the effect of, 'What the fuck are you staring at?' 'Mark' thereupon stood up and punched Falzon. The offender then stood up with a glass in his hand and walked to a position near the victim, who at this stage was sitting in his chair. The offender struck the victim in the face with the glass. The victim and the offender then engaged in a fight." 8 The consequences for the victim have been severe. He suffered injuries to his face, forehead and eyes. He underwent emergency surgery in respect of his eyes. There has been a substantial loss of sight. He is no longer able to drive. He is required to wear sunglasses, even on dull days. He finds difficulty with reading, which was his passion, and with his computer screen, which was his livelihood. He has been left with obvious scarring to his face. The psychological consequences have also been severe. He has lost confidence and has required counselling. 9 During the sentencing hearing, the applicant gave evidence. He said he believed that the victim paid Chantelle money in order that she prostitute herself. His Honour remarked that Mr Wright made no reference to that belief when he gave evidence at the trial. An affidavit was filed by a solicitor employed by Legal Aid which stated that he had received instructions from the applicant along similar lines. His Honour, however, was not persuaded. He said this: (ROS 4) "I do not give much weight to the offender's evidence regarding his belief that the victim handed money to Chantelle for the purpose of Chantelle prostituting herself. I come to this view for the reason that the CCTV film tendered in the trial clearly reveals that offender, at the hotel, had a romantic interest in the two girls prior to the victim and Falzon arriving at the hotel. I find that the offender's action in attacking the victim was precipitated not by his concern for the welfare of Chantelle …, but for his concern that the victim and Falzon were rivals for the attention of the two girls." 10 His Honour characterised the criminality involved in Mr Wright's actions in these words: (ROS 4) "I find that the offender's attack on the victim, whilst unplanned, was deliberate, unprovoked and effected in a cowardly manner. I find the offence to be at the high end of the range of objective seriousness for the offence." 11 Further, there were a number of aggravating features. First, the offence was committed whilst the applicant was on conditional liberty (s 21A(2)(j)). On 19 March 2006, he was charged with the offence of resist an officer in the execution of his duty. He was released to conditional bail on that day. The offence was committed whilst he was subject to that bail. 12 The second aggravating feature was that he was intoxicated at the time of the offence, knowing that he had a history of committing offences of violence whilst intoxicated. At the trial he said that he had consumed about eight drinks prior to the commission of the offence. He told W John Taylor, a psychologist, in a report which was tendered: (p5) "I was drunk and someone got hurt." 13 Solomon DCJ set out part of the cross examination of the applicant during the sentencing hearing. It was in these terms: (ROS 5/6) "Q. Right, now you also told Mr Taylor that you had a problem with alcohol for some time, is that correct? A. Yes. Q. And that alcohol had been a factor in most of the offences that you've been convicted of? A. I'd say all of the offences, yes. Q. All of the offences? So it's fair to say that you've got a problem with alcohol haven't you? A. Yes, that would be correct. Q. That alcohol predisposes you to being violent, doesn't it? A. Under certain circumstances in the past, I have been violent when drunk, yes that's correct. Q. And would it also be fair to say in light of the matter that you have already been convicted of, that you tend to have a predisposition to when you become intoxicated to arm yourself with a bottle or glass? A. I couldn't comment on my predisposition. There's a lot of different circumstances that happen on lots of different times and places. Q. You don't deny that in the past when you've become affected by alcohol you've armed yourself with a bottle and hit someone in the face with it? A. No I don't deny that. Q. You don't deny that? You don't deny that on another occasion you were stopped by police just after arming yourself with a bottle and breaking it, and approaching someone? A. Actually I was found not guilty of approaching anyone with a bottle in that case. Q. But you were found guilty of being in possession of a broken bottle? A. I did have a bottle, I didn't threaten anyone with it, no. Q. Now it's also fair to say isn't [it] that you've been aware for some time that you've got this problem with alcohol and violence haven't you? A. Yes. Q. And you would have been aware of that in October 2006 when this offence occurred? A. Yes." Continuing disregard for the law. 14 There was a third matter of aggravation (s 21A(2)(d)). It was one of some importance. Mr Wright had manifested a continuing attitude of disobedience of the law. The Crown tendered his criminal record. His Honour, ignoring certain convictions, identified those which he regarded as significant in sentencing the applicant. They were: (ROS 6/7) "1. On 23 April 2001 at the Bidura Children's Court the offender was convicted of the offence of malicious wounding. The offender was placed on probation for 12 months. 2. On 6 December 2001 at the Hornsby Children's Court the offender was convicted of the offence of Assault Police in the Execution of Duty. The offender was fined $600. 3. On 15 August 2003 at the Sydney District Court the offender was convicted of the offence of malicious wounding. The offender was sentenced to a term of imprisonment of 3 years with a non parole period of 18 months. 4. On 2 October 2003 at the Manly Local Court the offender was convicted of the offence of common assault. The offender was sentenced to a term of imprisonment of 6 months. 5. On 20 October 2003 at the Downing Centre Local Court the offender was convicted of the offence of common assault. The offender was placed on a s 9 bond. 6. On 20 October 2003 at the Downing Centre Local Court the offender was convicted of having custody of an offensive implement in a public place. The offender was placed on a s 9 bond for a period of 9 months. 7. On 20 October 2003 at the Downing Centre Local Court the offender was convicted of the offence of assault occasioning actual bodily harm. The offender was sentenced to a term of imprisonment of 9 months." 15 Three of these matters were of particular concern. Each involved the applicant arming himself with a glass. The Crown tendered an outline of the facts in respect of each offence. The first occurred on 4 July 2000 and was dealt with at the Bidura Children's Court on 23 April 2001. It involved an altercation between a number of individuals at the McDonalds restaurant at Cremorne. During the course of the altercation, the applicant struck the victim in circumstances which were described as follows: "The victim … turned his head to see if his friend was okay and when he turned his head back to face the young male, the Young Person who was holding a beer bottle in his right hand struck Bates with the bottle connecting with his left eye and nose." 16 The victim was taken to Royal North Shore Hospital. His nose was broken and he had a four centimetre laceration above his left eyebrow. There was, in addition, a five centimetre laceration "from in between his eyes down to the inside corner of his left eye". The lacerations required stitching. 17 The second offence occurred on 9 October 2001. It was dealt with in the Local Court on 20 October 2003. Mr Wright was charged with having an offensive implement in his possession in a public place. There had been a fight involving the applicant and others in a street in Crows Nest. The victim broke free from the grasp of the applicant and his male companion and ran to the Crows Nest Hotel. Thereafter the following occurred: "A short time later the Defendant was outside the Crows Nest Hotel, Falcon Street, Crows Nest. At the time he was in possession of a glass bottle holding it by the neck. The Defendant has smashed the end of the bottle against a garden bed. He has approached the Victim, Bordakiewicz, holding the jagged end of the bottle within 30cm of the victim's stomach. He has raised the bottle towards the victim's face. The victim fearing that he may be stabbed moved back inside the hotel. The defendant was confronted by hotel security and left the area." 18 The third matter of concern to the sentencing Judge was a charge of malicious wounding. It occurred on 26 April 2002 and was dealt with in the District Court on 15 August 2003. The victim, Matthew Young, and the applicant had been friends for a number of years. They had a falling out. On 26 April 2002, a number of young people, including Matthew Young, congregated at a service station in Neutral Bay. It came to Mr Wright's notice that Matthew Young had made a disparaging remark about him. He was reported as having said that he hated the applicant and wanted to hang him. The person who made the report added that Matthew Young had later said that "he didn't mean it and it was just 'drunk' talk". 19 The applicant's reaction was described in these words: "Almost immediately thereafter the prisoner calmly reached behind his back and picked up a broken beer bottle. He walked over to the exit area of the Service Station where the victim was standing and, without warning, punched him with the first in which he was holding the beer bottle. This blow struck Mr Young on the left hand side of his head in the area of the neck and ear lobe with the jagged edge of the bottle causing deep wounds to both areas. A struggle then ensured during which the prisoner still had hold of the bottle which was near the victim's face. He took hold of both of the prisoner's wrists and was able to avoid any further injury." 20 The victim was taken to Royal North Shore Hospital. His injuries were recorded as follows: " … deep laceration, ten centimetres in length to the left neck area involving penetration of muscle but not the neurovascular structures below … also … a smaller laceration, five centimetres in length, in the triangle area of the neck and a deep laceration to the left ear which had nearly severed the left earlobe." 21 Against that background, his Honour referred to the principle in Veen v The Queen (No 2) (1987-1988) 164 CLR 465, which was in these terms: (at 477/8) " … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 22 His Honour concluded as follows: (ROS 10) "The offender in committing the offence of maliciously inflict grievous bodily harm on 28 October clearly demonstrated a continuing disregard for the law. The sentence to be imposed today will contain a strong element of individual deterrence in order that the offender be deterred from continuing to manifest a disobedience of the law and from committing further offences." Other aspects of the subjective case. 23 Mr Wright was examined before the sentencing hearing by Mr W John Taylor, psychologist. Mr Taylor recorded a history that the applicant's parents had separated when he was ten years old. They had each later remarried. He was, according to Mr Taylor, "raised in a rather dysfunctional and abusive early family environment" (p 9). He began drinking alcohol at the age of 14 years and regularly became drunk. He later smoked cannabis and experimented with other drugs. He left school at the age of 16 years. To his credit, he returned to a TAFE college where he obtained the Higher School Certificate at the age of 19 years. He was reported to have been an above average student. In 2004 he obtained a Real Estate Certificate. 24 Mr Taylor administered a number of tests. He noted some antisocial personality traits, as well as "mild anger pathology" (p 7). He had twice been suspended from school for fighting. He was assessed by Mr Taylor as having a "moderate risk of recidivism" (p 8). 25 His Honour, however, did not accept Mr Taylor's view on recidivism. He said this: (ROS 10) " … I find in light of the offender's criminal record, which he has accumulated by the age of twenty-four and his abuse of alcohol, that I cannot accept that the offender has only a moderate risk of recidivism. I find the offender has a high risk of recidivism and that there is a need for society to be protected from the offender." 26 It was said on behalf of the applicant that he was remorseful. Indeed, he wrote a letter to the sentencing Judge in which he said he was very sorry for the injuries suffered by the victim. He added that he "took responsibility for his actions". He was "not trying to pass the blame". His Honour, however, was again not persuaded. He said this: (ROS 10/11) "I have concerns about the prisoner's letter. My first concern is that the offender, in the letter, appears to place some degree of blame on the victim for the attack and this indicates the offender's lack of true remorse. My second concern is that the offender does not appear to have developed any real insight into his alcohol/anger management problem." 27 It should be noted that Mr Wright told Mr Taylor that he was innocent of the offence. He would only acknowledge that he should have handled the situation differently, by reporting the victim to the bouncers. 28 Three witnesses were called on behalf of Mr Wright. One was a family friend who had known the applicant since he was a child. He said that he had never seen him exhibit violent behaviour. Another was his eldest brother, who said that he had never observed his brother "to be antagonistic or aggressive in social situations". Unsurprisingly, his Honour said this in respect of that evidence: (ROS 11) "The evidence of both Mr McDonald and Mr Benjamin Wright has little weight in light of the record of the offender." 29 Mr Leith gave evidence as a former employer of Mr Wright. He was aware of his criminal record. He has known him for four years. He was a reliable employee and was regarded highly. Mr Leith said that he would be prepared to re-employ Mr Wright upon release. In his remarks on sentence, his Honour made the following comment concerning that evidence: (ROS 12) "Mr Leith's evidence does not assist me to any degree in the sentencing process." The submissions of the parties. 30 In substance, the arguments advanced on behalf of the applicant can be summarised as follows. First, although his Honour characterised the applicant's criminality as at "the high end of objective seriousness", he did not find that it was within the worse category of case. Yet the head sentence imposed was almost the maximum, six years in the context of a maximum of seven years. 31 Secondly, his Honour placed too much significance upon the objective seriousness of the offence. It was serious, but there was also a subjective case, which his Honour all but ignored. The subjective case may not have been exceptional, but it was relevant. The applicant had the continuing support of his father and his partner. They continued to visit him in gaol. He had, since his incarceration, displayed a willingness to undertake programmes which will assist in his rehabilitation. Although he had a serious criminal record, there were periods where he had not offended. He had, during those periods, worked well. He was highly regarded by a former employer who was willing to re-employ him. 32 Thirdly, the statistics of the Judicial Commission suggested that the sentence imposed was in the top two percent in terms of head sentence, and the top several percent in terms of the non parole period. Finally, a comparison with other cases supported the view that the sentences were excessive. Reference was made to R v Steeden (NSW CCA, unreported, 19/8/1994); R v Woodhouse (NSW CCA, unreported 20/12/1996); R v McAdam (NSW CCA, unreported, 29/9/1997); R v Rowe (NSW CCA, unreported, 10/12/1997); R v Mackey [2006] NSWCCA 254; Morris v R [2007] NSWCCA 127. 33 The Crown responded by emphasising the serious nature of Mr Wright's crime. The circumstances of aggravation had to be given weight, especially Mr Wright's "continuing attitude of disobedience of the law" (Veen v The Queen (No 2) (supra)). The aggravating features meant that the statistics and other sentences were of limited assistance. Attention was drawn to the observation of Barr J in R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505 at 530/531, where his Honour said this: "[99] Another difficulty concerns the use by way of argument of the facts and resulting sentences in cases unrelated to the case under appeal. It is sometimes put that the facts of the case under appeal and those of the case cited for comparison are so alike that the sentences, too, should have been alike. Since they were not, error must have occurred. Hunt CJ at CL warned against such an approach in R v Morgan (1997) 70 A Crim R 368 when he said at 317 - 'It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411: 'the reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.' [100] When speaking of ranges of culpability and sentence counsel seem to have assumed that there must be a precise correlation between the two. While no doubt offences of high culpability ought to attract high sentences and those of low culpability low sentences there need be no precise correlation between sentences in unrelated cases where the facts are similar. Sentencing is an art. Sentencing judges have to evaluate a mass of evidence and different judges evaluate differently. Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong. To say so would deny the existence of judicial discretion. [101] The statement of Hunt CJ at CL in R v Morgan is of general application …" Conclusion. 34 I accept the Crown's submissions. In my view the sentence was not manifestly excessive. There was no error. Whilst the offence may not have been in the worst category, it was certainly at the high end. His Honour did not impose the maximum. He did, nonetheless, include an element of personal deterrence and that was entirely appropriate, given Mr Wright's continuing attitude of disobedience to the law. I have no doubt that his Honour was mindful of the applicant's subjective case. It was, however, as counsel acknowledged, not an exceptional case. Orders. 35 The orders I propose are: 1. That leave to appeal should be granted. 2. The appeal be dismissed. 36 HALL J: I agree with Kirby 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.