New South Wales Court of Criminal Appeal CITATION: Sayin v R [2008] NSWCCA 307 HEARING DATE(S): 5 December 2008 JUDGMENT DATE: 16 December 2008 JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Howie J at 46 DECISION: Appeal allowed. Appellant resentenced. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Maliciously cause grievous bodily harm - Finding of intent which would elevate crime to one attracting greater punishment - Assessment close to available maximum for actual offence of which offender convicted - Resentence required - Discussion of extent of Crown obligation to tender material touching on prior record - Serious objective facts but sentence must take into account statutory maximum CATEGORY: Principal judgment Courtney v R [2007] 172 A Crim R 371 Ibbs v The Queen (1987) 163 CLR 447 R v Engert [1995] 84 A Crim R 67 R v George [2004] 149 A Crim R 38 R v Israil [2002] NSWCCA 255 R v Mitchell, unreported, FCA 9 December 1997 CASES CITED : R v Scognamiglio [1991] 56 A Crim R 81 R v Shankley [2003] NSWCCA 253 R v Thomson & anor (2000) NSWLR 383 R v Walker [2005] NSWCCA 109 R v Way (2004) 60 (NSWLR) 168 R v Wickham [2004] NSWCCA 193 The Queen v De Simoni (1981) 147 CLR 383 PARTIES: Okan SAYIN - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2007/5682 COUNSEL: G K Walsh - Applicant V Lydiard - Respondent/Crown SOLICITORS: Phillip Gibson - Applicant S Kavanagh - Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0226 LOWER COURT JUDICIAL OFFICER: Hosking DCJ LOWER COURT DATE OF DECISION: 30/11/07 IN THE COURT OF CRIMINAL APPEAL CCA 2007/5682 McCLELLAN CJ at CL GROVE J HOWIE J 16 December 2008 Okan SAYIN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Grove J and with the additional remarks of Howie J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hosking DCJ in the Sydney District Court. In circumstances which are detailed in documentation to which I will refer the applicant pleaded guilty to a count of maliciously inflicting grievous bodily harm for which the prescribed maximum penalty is imprisonment for 7 years. His Honour sentenced the applicant to a total term of 5 years imprisonment in respect of which he specified a non-parole period of 3 years. He stated that, without the plea of guilty, the overall sentence should have been approximately 5 years 9 months imprisonment. The sentence hearing proceeded upon an agreed statement of facts bearing the signatures of the solicitors for the applicant and the prosecution, the police officer in charge of the investigation, the victim and the applicant. The content of this document was: "1. At about 9.00pm on Thursday 29 June 2006, the offender attended the Peppermint Lounge at the Crest Hotel, Darlinghurst, with his then fiancée Victoria Berton to watch various live comedy acts. 2. Shortly after, the victim Clinton O'Grady and his friends arrived at the bar. At about 10.45pm, the victim's brother Brendan arrived. 3. There were more than one hundred people at the bar sitting or standing watching the comedians. The offender and his fiancée were sitting at the back section of the seating area. The victim and his brother were standing behind where the offender and his fiancée were sitting. 4. The victim and his brother were talking to each other as they had not seen each other for some time. The offender was irritated and distracted by the conversation. The offender got up and approached the victim and stood within 30 centimetres of the victim's face. 5. The offender said, 'Shut the fuck up'. The victim replied, 'Sorry for making a noise. I was just talking to my brother who I haven't seen for a while.' The offender then said to the victim 'Get out.' The victim said, 'No, I'm having a drink. I'm going to finish my drink and then I'm going outside for a cigarette.' At that time, the offender was holding a spirit glass in his right hand. The victim's hands were down by his side. 6. The offender raised the glass and punched the glass into the victim's face. The glass shattered in the victim's face. The victim was forced backwards by the impact and fell to the ground. The victim's face was bleeding. The offender also cut his own right hand when the glass shattered on the victim's face. 7. Four (4) independent witnesses observed the offender approach the victim and punch the glass into his face. 8. The offender turned around left the premises immediately. When he got outside the bar, the offender ran northwards along Victoria Street. The victim's brother chased the offender until he stopped on the corner of Victoria Street and Earle Place, Potts Point. Security staff from the Peppermint Lounge arrived and detained the offender until the police arrived. 9. The offender was arrested and ambulance officers treated his hand injuries. The offender was taken to Sydney Hospital by the police and his hand injuries were treated. He was taken to Kings Cross Police Station and entered into Custody. His rights under Part 9 of LEAPRA were explained to him. 10. The offender participated in a video recorded interview. He admitted approaching the victim and telling him to be quiet. He admitted punching the glass into the victim's face. 11. The offender consumed three (3) Jack Daniels and Coke drinks on the night prior to assaulting the victim. 12. The victim was taken to St Vincent's Hospital. He suffered the following injuries as a result of the assault: - · .Two chipped upper front teeth. · Fractured nose. · Lacerations to his right eyebrow, nose, right cheek, upper lip, chin, inside mouth and hands. The victim's injuries were photographed soon after he arrived at the hospital and the following day. Copies of those photographs are annexed. 13. A shard of glass was stuck in the victim's eye. His brother removed that from his eye before the ambulance arrived. A further shard of glass was stuck under the victim's eyelid. That was removed by doctors in the emergency department. The victim was reviewed by an eye surgeon 10 days later. 14. The victim's lacerations were sutured with 40 sutures under local anaesthetic by plastic surgeon Dr Ho. The victim underwent a closed reduction of the fractured nose, under general anaesthetic. He was discharged from hospital on 1 July 2006. 15. The victim subsequently attended dentist Dr Floyd and had his two chipped front teeth capped. He may require root canal therapy if the nerves in either of his two damaged teeth die in the future because of the trauma to the teeth caused by the impact of the glass. 16. The victim's facial scars and injuries have been reviewed on two occasions and will be reviewed further in the future. He may require further surgery to correct persisting nasal displacement. He may also require further surgery to investigate possible nerve damage below his eye where a piece of glass was embedded. He suffers ongoing numbness in his upper lip. 17. On 30 June 2006, the offender was charged with malicious wounding with intent to cause grievous bodily harm (Section 33), maliciously inflict grievous bodily harm and malicious wounding (Section 35). 18. On 5 February 2007, the offender's solicitor advised the ODPP that the offender was prepared to plead guilty to a Section 35 charge if the ODPP withdrew the charge of malicious wounding with intent to cause grievous bodily harm and did not elect to have the matter dealt with on indictment. 19. On 26 February 2007, that plea offer was rejected by the ODPP. 20. On 22 March 2007, the offender was committed for trial. 21. On 30 March 2007, the Crown filed an indictment charging one count of malicious wounding with intent to cause grievous bodily harm (Section 33). 22. The matter was fixed for trial to commence on 28 May 2007. 23. On 7 May 2007, the offender's solicitor renewed the offender's offer to plead guilty to a Section 35 offence if the ODPP took no further proceedings on the charge of count of malicious wounding with intent to cause grievous bodily harm (Section 33). 24. On 23 May 2007, the ODPP advised the offender's solicitor that the plea offer would be accepted. 25. On 28 May 2007, the offender was arraigned and pleaded guilty to a charge of maliciously inflict grievous bodily harm. 26. The offender was bail refused upon his arrest on 29 June 2006. He was released on bail on 6 July 2006. He has spent seven (7) days in custody in relation to this matter." 3 The applicant has filed the following grounds of appeal: "1. The learned sentencing Judge erred in his assessment of the value of the plea of guilty. 2. His Honour erred in the assessment of the objective seriousness of the offence. 3. His Honour erred in not finding a causal link between the mental illness of the applicant and the circumstances of the offence. 4. His Honour erred in the weight to be given in the sentencing process to the applicant's mental illness. 5. His Honour erred in his assessment of the applicant's previous criminal record and the weight to be given to it in relation to the sentencing process. 6. The sentence imposed was manifestly excessive." GROUND 1 The learned sentencing Judge erred in his assessment of the value of the plea of guilty. 4 When the application was called on for hearing counsel informed the Court that this ground was no longer pressed. GROUND 2 His Honour erred in the assessment of the objective seriousness of the offence. 5 It was appropriate for his Honour to establish the heinousness of the applicant's conduct of which a significant element was the damage caused to the victim: Ibbs v The Queen (1987) 163 CLR 447. In this regard there is some detail in the agreed facts and his Honour stated: "My assessment of the objective seriousness of this malicious infliction of grievous bodily harm is that as an example of this offence, this is an offence towards the top of the scale at least. In my view to ram a glass into the face of another ranks as one of the most vicious and cruel types of infliction of serious bodily harm. Evil though it would be to ram a glass into another's arm or torso, it would at least mean that the victim could cover the wounds with clothing. Not so of course with the face. There is no hiding facial scarring. There was no provocation in this instance at all, unless the offender thinks that somebody carrying on a conversation behind him is provocation to in any way even explain what he did. If he does hold any such thought, (and I do not suggest that he does), then he would be completely wrong. The offender acted deliberately and entirely without the slightest provocation or justification." 6 There are circumstances personal to an offender which may be relevant to the seriousness of an offence by reason of causal connection with its commission: R v Way (2004) 60 NSWLR 168. Complaint is made of an alleged absence of mitigation by reason of a relevant mental condition of the applicant and I will refer to this in more detail in connection with ground 3. 7 His Honour recited a lengthy extract from the Victim Impact Statement and, given the consequences to the victim recounted therein, it was entirely appropriate for his Honour in addressing his remarks on sentence to the applicant to remind him in vivid detail of the damage which his crime had caused. There is no basis for concluding that his Honour did other than receive and consider the content of the statement in accordance with s 28 of the sentencing legislation and I would reject the submission that his Honour "may well have inappropriately elevated the assessment of the objective seriousness of the offence by reference to it's content". 8 However, inter alia, his Honour said: "In my view it would be difficult, albeit not impossible, to inflict more damage to the face of another person by the use of a glass in this way than the offender did in this instance. To ram a glass into the face of another is calculated to inflict serious damage to that part of each of us is most conscious of in terms of the way other people perceive us, that is to say the face. I have no doubt whatever that this is what the offender intended. This was the essence of the malice in what he did to Mr O'Grady and to which he has pleaded guilty. An intention to disfigure Mr O'Grady's face – an intent to seriously disfigure it. The offender accepts that what by his plea that what he did caused Mr O'Grady grievous bodily harm. In plain English, really serious bodily harm." 9 In this context it is important to recapitulate the detail concerning the count upon which the applicant stands convicted. The distinction between count 1 (upon which the applicant was not convicted) and count 2 was an element in the former requiring proof that the applicant intended to inflict the grievous bodily harm suffered by the victim. In her written submission to this Court the Crown Prosecutor emphasized that "maliciously" which was an element of count 2 (as legislation then articulated) is defined to include "intent to injure" but to elevate an offence into the category that was charged as count 1 (which has a prescribed maximum penalty of imprisonment for 25 years) the intent must be specifically greater than simply to injure and be a specific intent to cause grievous bodily harm. 10 There is clear authority proscribing taking into account facts adverse to an offender which would so aggravate the offence charged as to make the offender liable to punishment for a more serious offence: The Queen v De Simoni (1981) 147 CLR 383. 11 There is, of course, no issue about the element of the offence to which the applicant pleaded guilty that his actions in fact caused grievous bodily harm. His Honour's finding above quoted was that the applicant's action was "calculated to inflict serious damage to … the face", which expression is undeniably synonymous with an intent to cause really serious bodily harm. 12 Apart from the plain meaning of those words, his Honour repeated that he had "no doubt whatever that this (i.e. the infliction of serious damage to the face) is what the offender intended" and further "an intent to seriously disfigure" the victim's face. 13 The inevitable conclusion is that his Honour proceeded to punish the applicant for harbouring the intent which he found. Such a specific intent was not an element of the offence for which the applicant was liable to be punished and in this regard I would uphold ground 2. 14 I add that, when this matter was canvassed at the hearing, the Crown Prosecutor acknowledged the defect and did not seek to press the issue beyond what had appeared in the written submission. GROUND 3 His Honour erred in not finding a causal link between the mental illness of the applicant and the circumstances of the offence. 15 In written submissions counsel for the applicant noted that the Crown called no psychiatric evidence. In that a claimed psychiatric condition of the applicant might be relevant, it was a matter of mitigation in respect of which no onus lay on the Crown. There was evidence from a psychiatrist Dr Tran and the tender of a Justice Health file relating to the applicant. It is contended that his Honour rejected the evidence of Dr Tran when it was not open so to do. 16 A report by Dr Tran was tendered and he gave oral evidence. The latter was of some length. I observe that the first question in cross examination produced a concession that the opinions expressed in the report were based solely upon what the applicant had told Dr Tran and from hospital and gaol records of what the applicant had told other doctors. Histories were not confirmed by evidence from the applicant himself. 17 It was submitted that his Honour misconstrued the evidence of Dr Tran in that the doctor did not accept what the applicant told him was truthful or a reality, rather than being what the applicant told Dr Tran represented a perception. It was nevertheless necessary that perceptions expressed by the applicant and conveyed to Dr Tran by him be accurate in the sense that what he was describing was in truth what he perceived. His Honour had available the video recordings of the lengthy interview of the applicant by police which took place within hours of the commission of the offence, as well as the histories relied upon by Dr Tran. 18 His Honour's function as a fact finder included determinations of the acceptability of expert opinions such as offered by Dr Tran and there was ample basis in the evidence, particularly in the lucidity of the applicant's attempts to describe the facts to police in his own favour (and contrary to the facts which were the subject of the express agreement in the proceedings) for concluding that Dr Tran's opinions were based upon unfounded premises and hence were unreliable. 19 The only evidence suggesting a link between the offence and any mental condition of the applicant was to be found in Dr Tran's opinions. It was entirely open to his Honour to find that he was not satisfied that there was any link between any mental condition from which the applicant suffered and the unprovoked attack on the victim. 20 I add that neither was his Honour obliged to accept the descriptions of "weird" behaviour by the applicant which were said to have been observed by his wife. 21 Despite his finding of the absence of causal link, his Honour stated that he would make some allowance for the "possibility" and he said: "The plain and simple fact was that Mr O'Grady was annoying the offender and that he reacted to that with overwhelming anger and violence for which he is now criminally answerable. As I have said, I am not prepared to find the causal connection asserted between the offender's mental conditions and what he did on this night. For whatever reason he is violent and he has little impulse control. Perhaps that is in someway connected with his mental condition, I will make some allowance in his sentence for that possibility." 22 As, in my opinion, this Court should intervene to resentence there is no need to explore the extent to which this possibility may or may or not have been reflected in his Honour's assessment. 23 As expressed I would reject ground 3. GROUND 4 His Honour erred in the weight to be given in the sentencing process to the applicant's mental illness. 24 Although there may not be a link between a mental illness harboured by an offender, if such a condition exists it may be that the offender is unsuitable as a vehicle to exhibit general deterrence and if that be the case, logically, the absence or the reduction of the significance of such an element would operate to reduce the assessment otherwise reached: R v Scognamiglio [1991] 56 A Crim R 81. 25 However, it does not inevitably follow that the existence of some mental illness must result in a lesser sentence: Courtney v R [2007] 172 A Crim R 371. The applicant submitted that his Honour erred in applying the principles of general and specific deterrence in the sentencing process and relied for that proposition upon what was said in R v George [2004] 149 A Crim R 38 particularly at pars 34-39 of that judgment. Nothing therein suggests, as the submission implied, that the existence of mental illness extinguishes the capacity of a judge in sentence assessment to give weight to both specific and general deterrence. The requirement is for a judge to consider in particular circumstances what weight should be given to personal deterrence: R v Israil [2002] NSWCCA 255 and what weight should be given to general deterrence: R v Engert [1995] 84 A Crim R 67. 26 In the present case his Honour said in relation to general deterrence: "I will say it once, that although the offender is said to suffer from a mental condition, my assessment is that the consideration of general deterrence should apply even to the offender in significant measure, even if not in full measure." 27 On the question of personal deterrence his Honour made remarks which I have quoted when dealing with ground 3. 28 His Honour did not make his assessment contrary to any applicable principle and the extent to which the mitigation was included was a matter for the exercise of his discretion. Subject to what I will say in relation to ground 6, there is no demonstration that the discretion miscarried. GROUND 5 His Honour erred in his assessment of the applicant's previous criminal record and the weight to be given to it in relation to the sentencing process. 29 In written submissions ground 5 was articulated differently and in these terms: GROUND 5 – His Honour was not appropriately provided (and it is accepted that the Applicant's representatives did not provide appropriate assistance in this regard) with a copy of the Court of Criminal Appeal's decision of 2003. 30 Concerning the ground (in both of its expressions) it was contended that his Honour elevated a previous conviction of the applicant into an aggravating factor pursuant to s 21A (2)(d) of the Sentencing legislation, and that that was "not appropriate given the time gap between the offences and the nature of the mental illness". 31 This submission conflated several concepts. The application of the statutory provision has had attention and the existence of prior record may indicate that retribution, deterrence or the protection of society warrant a greater severity of sentence: R v Shankley [2003] NSWCCA 253; R v Wickham [2004] NSWCCA 193. His Honour stated inter alia, in regard to the record, that the applicant was entitled to "no discount that a first offender might receive" thus explaining the manner in which the record was being taken into account. This was entirely appropriate: R v Walker [2005] NSWCCA 109. 32 It is true that there was a considerable time gap between the offences, the earlier conviction following events of 28 August 1992. 33 The applicant had pleaded guilty to an offence on that occasion of assault occasioning actual bodily harm and he was sentenced in the District Court to imprisonment for 18 months to be served by periodic detention. Subject to a requisite adjustment for time served, an appeal to this Court was dismissed on 6 December 1994. Thereafter, as can be gleaned from a judgment of this Court of 1 December 2003, ([2003] NSWCCA 384) the applicant presented himself on 14 December 1994 at the Periodic Detention Centre but he was denied entry because no warrant had been received there. Apparently it arrived subsequently and a number of notices were sent to the applicant at a particular address but these were returned unclaimed. 34 In 1995 the applicant (having not attended for periodic detention) returned to his country of origin, Turkey. A report from Blacktown Hospital recording an admission between 22 April 1996 and 17 May 1996 demonstrated that he had by then returned to Australia. However, a report issued in May 1999 revealed that he was in Turkey again. At some time he once more returned to Australia and on this occasion he was arrested by execution of warrant on 14 August 2002. Thereafter he was kept in full time custody until he was released on bail on 20 February 2003. The second appeal to this Court which I have mentioned was dealt with on 1 December 2003 and the consequence of its order was that the applicant was required (or in a practical sense, deemed) to be released on parole with effect from 20 February 2003. 35 I interpolate that his Honour commented that he considered that the applicant went to Turkey to avoid serving periodic detention but it has not been suggested that he took this into account as an aggravating factor when he was making sentence assessment. From the judgment of this Court in 1994 it can be seen that the facts of the 1992 offence were that the applicant approached a man who was said to have had an affair with his then wife at some time before the applicant had even met her. The victim thought that the applicant had punched him in the stomach but on detecting blood he realized that he had been stabbed and he thereupon drove himself to a hospital. The applicant followed him there and he was arrested whilst sitting in the casualty waiting room. 36 His Honour described this event as demonstrating that the applicant was a man capable of extreme violence without warning. He had reference to the judgment of this Court of 6 December 1994 and made express reference to the content of some of it. 37 Neither the Crown nor the applicant's representatives drew attention to the judgment of 1 December 2003. There was no obligation on the Crown so to do. What has been said to be desirable is for the Crown to provide adequate information about prior convictions in order to enable a court to identify matters which might be similar or distinguishable: R v Mitchell unreported FCA 9 December 1997. This was done. 38 Expressed in either way I would reject ground 5. GROUND 6 The sentence imposed was manifestly excessive. 39 As observed above, the maximum available penalty was imprisonment for 7 years. It is well established that a maximum may be appropriate for an offence in the worst category and/or for an offender who falls into the worst category. 40 So far as the latter is concerned, the applicant is aged 41 years and the matter in 1992 is his only prior offence. In the subjective sense he is well outside the category of being a worst offender. 41 It cannot be disputed that the offence itself was serious and his Honour was entitled to consider battery to the face with a glass to be misconduct of a high order, such consideration being confirmed by the extent of injury to the victim in this case. However, in the scale of things which could amount to grievous bodily harm it could not reasonably be concluded that the harm in this case lay at the top or near to the top of the range. 42 An assessment of 5 years 9 months imprisonment (prior to allowance for the utilitarian value of the plea of guilty) approached so close to the maximum that in all the circumstances I would classify it as manifestly excessive. It might be considered likely that his Honour's assessment came about as a result of the impermissible taking into account of an actual intention by the applicant to cause the serious harm suffered by the victim which I have discussed above concerning ground 2. 43 I would quash the sentence in the District Court and proceed to resentence. It is not necessary to repeat the facts or the matters dealt with in connection with the grounds of appeal. His Honour found there were special circumstances requiring departure in the applicant's favour from the statutory formula in setting the non-parole period and I agree with his conclusion in that regard. In particular his Honour saw a need for lengthy supervision to require the applicant to adhere to a medication regime and it might be noted that he ordered conditions on parole appropriate to this. 44 I would assess an appropriate total sentence as 4 years 6 months which I would reduce by approximately 15 percent for the utilitarian value of the plea of guilty (congruent with the assessment by his Honour) resulting in a term of 3 years 9 months. Using the same proportion as Hosking DCJ I would calculate a non-parole period of 2 years 3 months. 45 The orders which I propose are: 1. The application for leave to appeal against sentence granted and appeal allowed. 2. Sentence in the District Court quashed. 3. In lieu thereof, the applicant sentenced to imprisonment consisting of a non-parole period of 2 years 3 months commencing on 23 August 2007 and expiring on 22 November 2009 with a balance term of 1 year 6 months commencing on 23 November 2009. . 4. The earliest date of eligibility of release to parole is specified as 22 November 2009. 46 HOWIE J: I agree with the orders proposed by Grove J for the reasons given by him. I simply wish to add that had it not been for the maximum penalty prescribed for the offence of malicious wounding, in no way would I have considered the sentence imposed manifestly excessive. In fact having regard to the nature of the injuries and the manner in which they were inflicted without any provocation or chance for the victim to take evasive or protective action, the penalty imposed was lenient as a reflection of the objective culpability of the applicant and the need to denounce and deter the conduct. 47 The offence, popularly known as "glassing", is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty. In light of the fact that the maximum penalty for an offence under s 35(2), recklessly inflict grievous bodily harm, is now 10 years imprisonment, the increased maximum penalty should result in a marked increase in the penalty for offences of this nature. Had the sentence this Court is now substituting been imposed for the new offence under the Crimes Act with the increased maximum penalty, it would be arguably manifestly inadequate. 48 I have some sympathy for the sentencing Judge because in almost all cases of this type of conduct there would be little difficulty in inferring the intention for the s 33 offence. The Judge's statement as quoted by Grove J is absolutely correct in general terms but not having regard to the offence for which the applicant was being sentenced. The applicant was very fortunate, in my opinion, to be allowed to plead guilty to an offence under s 35. However the Crown having accepted that course, the Judge was bound to sentence the applicant accordingly. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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