New South Wales Court of Criminal Appeal CITATION: DUNN v R [2010] NSWCCA 128 HEARING DATE(S): 2 June 2010 JUDGMENT DATE: 16 June 2010 JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; Johnson J at 32 DECISION: Leave to appeal against sentence granted but appeal dismissed. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Indictment for causing grievous bodily harm with intent - Plea of guilty to recklessly causing grievous bodily harm accepted in satisfaction of indictment - Standard non parole period - What is required to express scale of seriousness of offence - No obligation to articulate hypothetical abstract offence - In circumstance that conviction for particular offence followed offender's plea in the District Court no relevance in fact that offence against the provision may be charged and dealt with in Local Court - Victim loses sight of eye - Considerable lenience in imposition - Intervention not called for Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 CATEGORY: Principal judgment Phan v R [2010] NSWCCA 8 R v AJP (2004) 158 A Crim R 575 R v Crombie [1999] NSWCCA 297 R v Depoma [2003] NSWCCA 382 CASES CITED : R v El Masri [2005] NSWCCA 167 R v Knight (2007) 176 A Crim R 338 R v McEvoy [2010] NSWCCA 110 R v Mitchell (2007) 177 A Crim R 94 R v Way (2004) 60 NSWLR 168 PARTIES: Gregory Allen DUNN - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/15955 COUNSEL: M Ramage QC - Applicant J Dwyer - Respondent/Crown SOLICITORS: Byrnes & Cox - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/15955-006 LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 29 May 2009 IN THE COURT OF CRIMINAL APPEAL CCA 2008/15955-006 McCLELLAN CJ at CL GROVE J JOHNSON J 16 June 2010 Gregory Allan DUNN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Grove J. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Boulton ADCJ in Port Macquarie District Court on 29 May 2009. 3 The applicant was scheduled to stand trial in the sittings of the Court commencing on 18 May 2009 upon an indictment containing a single count charging causing grievous bodily harm with intent contrary to s 33 (1) (b) of the Crimes Act 1900. That charge is triable only on indictment but s 33 (3) provides that it is open to a jury to acquit of that charge and find an accused guilty of an offence against s 35 of that Act. 4 On 19 May the applicant pleaded not guilty to the charge on the indictment but guilty of recklessly causing grievous bodily harm contrary to s 35 (2). Pursuant to s 153 of the Criminal Procedure Act 1986 it was open to the Crown, as it did, to accept that plea to the uncharged offence in satisfaction of the indictment. 5 An offence against s 35 (2) of the Crimes Act carries a prescribed maximum penalty of imprisonment for ten years and a standard non-parole period of four years. 6 His Honour sentenced the applicant to imprisonment consisting of a non-parole period of 15 months commencing on 29 May 2009 and expiring on 28 August 2010 with a balance term of 15 months. Given that length of sentence his Honour should have ordered the release of the applicant to parole on 28 August 2010 (s 50 Crimes (Sentencing Procedure) Act 1999) but the transcript does not record such an order being made. 7 There was tendered an agreed statement of facts for the purpose of sentence. Each of the applicant and the victim lived on small acreage some five blocks apart on the same street. A friendship that had once existed turned sour. Exactly what the cause of this was not explored in the District Court but there was tendered what was described as a copy of a letter of apology to the victim (Exhibit 3) which contained the rather cryptic reference "we should never have allowed our dispute to get as bad as it did. It was a school bus related incident. Things just got right out of hand." 8 The central events were described thus: "On 17 June 2008 the victim was in Elbow Street, Kempsey. He had parked his vehicle and attended the Post Office and was crossing the street returning to his vehicle. The offender drove past and the two again exchanged verbal insults. The victim returned to his vehicle, did a U turn and commenced to drive away when he noticed the offender standing on the footpath. Further verbal insults passed between the men. The victim stopped his vehicle; leaving the same double parked, got out and approached the offender. As the victim approached the offender there were further verbal exchanges. As the victim approached the offender, the offender took off his sunglasses and handed them to a young person to hold. The two men came face to face – the offender asserts the victim threw the first blow; the victim asserts the offender attempted to head butt him but that missed and then he was punched to the left temple. Both men exchanged punches for a short time – the offender then grabbed the victim's head and kneed him to the right side of his face on a number of occasions. The victim attempted to grab the leg of the offender and both men went to the ground – the offender thereafter struck the victim a number of further blows to the head and body." 9 The effects on the victim were stated in the agreed statement: "As a result of the incident the offender (sic – the victim) suffered multiple fractures of the right cheek and eye socket, a fractured nose, a broken tooth and has lost the sight in his right eye as a result of damage to the optic nerve. There is no likelihood that the vision in his right eye will improve." 10 The judge was unable to determine which man threw the first punch or attempted to make the first blow. As was the Crown case, the level of violence engaged in by the applicant went beyond any conduct of reasonable defence. His Honour found: "The response of the offender in this instance in kneeing the victim to the face on a number of occasions, goes well beyond any reasonable attempt to defend himself. Situations where people either kick or knee others to the face or head go well beyond what is reasonable defence and this is not a case where the attempt made by this offender can be held to be anything other than very serious. To knee another person on a number of occasions to the face area suggests an attempt, albeit one that is not premeditated, to inflict injury on that other person." 11 The applicant relies upon four grounds of appeal. As has been done by both counsel and is sensibly convenient, grounds 1 to 3 can be dealt with together. They are: " Ground 1 His Honour erred by failing to make a finding about the level of objective seriousness of the offence. Ground 2 His Honour erred by failing to meaningfully compare the objective seriousness of the offence with abstract offences in the middle of the range. Ground 3 His Honour erred in his assessment of the objective seriousness of the offence." 12 In her written submissions, the Crown Prosecutor conceded "that his Honour erred in that he did not specifically state that he had undertaken the exercise required." She did not then detail what requisites of "the exercise" were absent so as to found the concession, but it was plain from the content and tenor of her submissions that she was referring to the need to specify, having regard to the legislation of a Standard Non Parole Period for the offence, where, in or outside of the appropriate range of seriousness, this offence lay: see R v Knight (2007) 176 A Crim R 338; R v Mitchell (2007) 177 A Crim R 94. 13 The essence of the applicant's contention was expressed in his written submissions "thus his Honour's failure to undertake fundamental aspects of the sentencing exercise required by R v Way (2004) 60 NSWLR 168 led the sentencing proceedings to miscarry." 14 The foundation of this submission was derived from the observation at par 75 in Way (Spigelman CJ, Wood CJ at CL and Simpson J) that it was incorrect to propose that there is no need for a judge to determine, in any given case, what is "an abstract offence" in the middle of the range of objective seriousness. 15 A thrust of the submission was that error is shown if the sentencing judge does not in some way articulate the constituents of "an abstract offence". This is to impose an obligation which is not established by the authorities. I understand the reference to "an abstract offence" to be a recognition that there lies within a range of offending, an offence which is unembroidered by the particular objective circumstances which are applicable to an offence then being assessed. 16 I do not regard a sentencing judge as obliged to put into descriptive words some purely hypothetical offence. I am conscious that it has been said, for example, in R v AJP (2004) 158 A Crim R 575 at 580 that a sentencing judge will be required to hypothesize "an abstract offence" in the middle of the range of objective seriousness in order to determine where a subject offence lies. I do not understand this to mean that a sentencing judge must incant some description of a hypothetical offence but rather that the judge must bear in mind that there lies within the mid range, an offence or offences, which are not affected by the particular facts pertinent to an offence under consideration. 17 I consider this view to be supported both by the absence of the offer of any exemplar of "an abstract offence" and the explanation that what has been said to be required "is, in reality, little different from a traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence": AJP at par 13. 18 That view is also supported by observations following the reference in Way abovementioned when there was added (at par 77): "We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence. Judges are well accustomed to considering and stating that a particular case falls into the worst category, or into the category of offences at a lower level of objective seriousness: see Ibbs v The Queen; Baumer v The Queen (1988) 166 CLR 51 at 57 and R v Moon (2000) 117 A Crim R 497 at 510." 19 It is true that in the current instance his Honour, apart from the expression "very serious" in the extract from his remarks on sentence already quoted, made no other reference to scale other than observing a submission by the prosecutor that the matter "falls somewhat below the mid range for offences of this kind". He did not state, or otherwise indicate beyond that, whether, for example, the offence fell substantially, significantly, or slightly below the notional mid-range offence. 20 As was recently observed in R v McEvoy [2010] NSWCCA 110 (per Simpson J at par 89) an omission of this kind is an error of process and it does not necessarily follow that there is some error in the imposition of the sentence which has been assessed. An error of process does not inevitably result in a sentence being either manifestly excessive or manifestly inadequate. Such an error notwithstanding, a sentence may well lie within the range of the sound exercise of sentencing discretion: cf Phan v R [2010] NSWCCA 8 at pars 11 and 16. 21 Whatever defect might be found to arise from inadequacy of expression, a sentence assessment of 3 years imprisonment, reduced for the plea to 2 years 6 months, where the consequences of the crime included, inter alia, the permanent loss of sight of an eye is so low that I would conclude that his Honour has made generous allowance for whatever instigating contribution the victim made, the circumstance that the applicant's liability arose out of excessive self defence, together with allowance for favourable subjective factors upon which the applicant could draw. 22 Nothing raised in relation to these grounds would provoke intervention by this Court. 23 Ground 4 asserted: "His Honour erred by failing to have regard to the fact that the offence was capable of being dealt with summarily." 24 A charge of recklessly causing grievous bodily harm contrary to s 35 (2) of the Crimes Act is a Table 1 offence under the Criminal Procedure Act to be dealt with in the Local Court unless an election is made by the Director of Public Prosecutions (for trial on indictment). 25 The applicant's conviction of an offence contrary to s 35 (2) did not follow upon the preferment of any charge against that provision. As earlier recorded, he was committed to the District Court upon an offence triable only on indictment and was convicted as a result of his offering a plea of guilty to an offence against s 35 to that indictment. He was not standing for sentence in the District Court as a result of any election by the Director of Public Prosecutions. As a matter of fact therefore the applicant never was in the position that he had the chance that the offence could have been dealt with in the Local Court where the jurisdictional sentencing limit is imprisonment for 2 years. 26 At all times the sentencing court was dealing with the applicant in respect of statutory sentencing prescriptions abovementioned. In his submissions to the sentencing judge, counsel for the applicant (who did not appear in the appeal) recognized that the matter was before the District Court as "a statutory alternative to the count that was then on foot" and he observed that "if …..a single count" it could have been dealt with in the Local Court. He did not address the matter further. Given the permanent disability caused to the victim, had the applicant been originally charged with an offence contrary to s 35 (2) it would have been unlikely that the prosecutor would not elect transfer from the limited jurisdiction of the Local Court, however it is not necessary to assume this to deal with this ground. 27 His Honour did not refer to counsel's observation in his remarks on sentence. In R v Crombie [1999] NSWCCA 297 (a two Judge bench) Wood CJ at CL said that where sentence could have been imposed in the Local Court (and for the above reasons in this case it could not), if it appeared that the sentencing judge entirely overlooked the matter it may properly justify the granting of leave to appeal. That of course is not saying that intervention is necessarily justified. 28 In R v El Masri [2005] NSWCCA 167 it was said that the proposition that overlooking a potential to be dealt with in the Local Court indicated error could be tested by assessing whether or not a sentence was manifestly excessive. For reasons above adumbrated, that was not so in this case. 29 The express written submission by the applicant that the sentence points towards his Honour failing to give consideration to the fact that the matter could have been dealt with in the Local Court should be rejected for two reasons. First, this charge could not have been, in the circumstances, dealt with in the Local Court at all, and, second, the sentence reflects lenience to a marked degree which would, if relevant, suggest that the matter had not been overlooked: cf R v Depoma [2003] NSWCCA 382. 30 Ground 4 is not sustained. 31 In any event no lesser sentence than that imposed by his Honour was required in law. I would grant leave to appeal against sentence but dismiss the appeal. 32 JOHNSON J: I agree with 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.