New South Wales Court of Criminal Appeal CITATION: Dosen v R [2010] NSWCCA 283 HEARING DATE(S): 29 November 2010 JUDGMENT DATE: 29 November 2010 JUDGMENT OF: Hall J at 1; Latham J at 2; Price J at 3 EX TEMPORE JUDGMENT DATE: 29 November 2010 1. Leave to extend time to appeal be granted. DECISION: 2. Leave to appeal against sentence be granted. 3. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - sentencing - whether sufficient weight given to applicant's state of health - whether too much weight given to specific deterrence - whether sentence manifestly excessive LEGISLATION CITED: Crimes Act 1900 s 33(1)(a), 35(2) Crimes (Sentencing Procedure) Act 1999 s 21A(3), s 44(2) CATEGORY: Principal judgment Markarian v R (2005) 228 CLR 357 R v Badanjak [2004] NSWCCA 395 CASES CITED : R v BJW (2000) 112 A Crim R 1 R v McNaughton [2006] NSWCCA 242 R v Rivkin (2004) 59 NSWLR 284 R v Smith (1987) 27 A Crim R 315 PARTIES: Steven Michael Dosen (Applicant) Crown (Respondent) FILE NUMBER(S): CCA 2009/7780 COUNSEL: Mr T M Healey (Applicant) Mr P Ingram SC (Respondent) SOLICITORS: Lambton Law (Applicant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/7780 LOWER COURT JUDICIAL OFFICER: Walmsley SC DCJ LOWER COURT DATE OF DECISION: Friday 30 October 2009 - 1 - IN THE COURT OF CRIMINAL APPEAL 2009/7780 HALL J LATHAM J PRICE J 29 November 2010 DOSEN v R Judgment 1 HALL J: I agree with the reasons and orders proposed by Price J. 2 LATHAM J: I also agree with the reasons and orders proposed by Price J. 3 PRICE J: The applicant Steven Michael Dosen pleaded not guilty in the District Court on 19 August 2009 to the first count on an indictment being a charge of wounding with intent to inflict grievous bodily harm contrary to s 33(1)(a) Crimes Act 1900 but guilty to the second count of recklessly inflicting grievous bodily harm contrary to s 35(2) Crimes Act. The Crown accepted the plea of guilty to count 2 in full satisfaction of the indictment and the proceedings were adjourned for sentence. 4 On 28 October 2008, the applicant appeared for sentence before Walmsley SC DCJ and evidence was led by both the applicant and the Crown in relation to disputes concerning the events that had immediately preceded the offence and the manner in which the applicant had injured the victim. On 30 October 2009, the Judge sentenced the applicant to a term of imprisonment of 3 years consisting of a non-parole period of 18 months commencing 30 October 2009 and expiring 29 April 2011 with a balance of term of 18 months commencing 30 April 2011 and expiring 29 October 2012. 5 The maximum penalty for a s 35(2) Crimes Act offence is imprisonment for 10 years. A standard non-parole period of 4 years applies. 6 The applicant now seeks an extension of time and leave to appeal against the severity of the sentence imposed. There is no affidavit material put on by the applicant explaining the delay but it seems that the extent of the delay was about one month. In those circumstances the Crown does not argue against a grant of extension of time. 7 The notice of appeal identifies the following grounds: 1. The applicant says that in all the circumstance the penalty is too severe. 2. His Honour was in error by not taking into sufficient account and having regard to the ill health and subjective circumstances of the applicant presented as existing prior to the offence and still existing at the time of sentence. Facts 8 The facts found by the Judge may be summarised as follows. On 14 January 2009, Mr Phillips was working on the evening shift in the hotel which he and his wife ran in Newcastle. The applicant, his partner Miss Weiss and a friend arrived at the hotel at about 10:20pm. They were unknown to Mr Phillips. Mr Phillips' daughter, Lisa, was the bar attendant on duty and an order was placed for two schooners of beer and a cup of coffee. Miss Weiss complained that the coffee served to her was not strong enough. His Honour was not persuaded beyond reasonable doubt that Miss Weiss swore at the bar attendant but was persuaded that she complained very forcefully. 9 Mr Phillips was asked to come to the assistance of Lisa who had become concerned about the behaviour of the applicant and his companions. Mr Phillips asked them to leave the hotel. The Judge was satisfied that the applicant was under no misunderstanding about the request as to its terms and as to what it required. The trio was resistant to leaving. Though Miss Weiss and the applicant said that Mr Phillips swore at them and threw a punch when behind the bar, the Judge was not persuaded that had occurred but was satisfied that Mr Phillips was forceful in the way he spoke to them. 10 Miss Weiss threw a jug of water onto Mr Phillips; the water went over all over his upper body. Mr Phillips asked the applicant to put down a schooner glass, which he still had in his hand, but the applicant did not put it down. Mr Phillips pushed the applicant out the door. On at least one occasion after he had had the jug of water thrown on him, Mr Phillips attempted to get Miss Weiss out of the door. As she went out the door, Miss Weiss tripped, fell onto the footpath and suffered injuries. She was later taken by ambulance to hospital for treatment. 11 After Miss Weiss fell, the applicant threw the glass in the direction of Mr Phillips, striking him on the head and causing very significant injuries. 12 The Judge rejected the applicant's evidence that he threw the glass because he had been worried that he would be attacked and that the glass had hit a door and bounced onto Mr Phillips' face. The applicant's testimony that he felt intimidated and had only become angry when he saw Miss Weiss fall was also rejected. 13 His Honour had no doubt that the applicant was angry when he threw the glass and was satisfied that he did that for, what he felt was unfair treatment of the trio, through having been excluded "and probably also because Miss Weiss had fallen over." 14 He accepted that the applicant did not intend to injure and that the incident was a spontaneous event in the heat of the moment. The Judge was not persuaded on the balance of probabilities of provocation under s 21A(3) Crimes (Sentencing Procedure) Act 1999. The Judge was satisfied that the applicant and Miss Weiss saw Mr Phillips "as excessive in the way that he treated them" but found that Mr Phillips was entitled to put them out and they were obliged to go. The Judge found that the applicant's act in throwing the glass was an "irrational and disproportionate act" and was "slightly less than the midrange for the offence." The degree of harm, his Honour said, to Mr Phillips was quite significant. His Honour described Mr Phillips' injuries as follows (AB 12-13): "When the glass struck Mr Phillips' head it punctured a main arterial blood vessel in his head, leading to torrential bleeding. He was taken to…hospital and admitted. He required two blood transfusions. There were about twenty-four sutures placed in a scalp laceration; pieces of glass were removed. He developed significant chest pain while he was there. There were medical records in evidence which, among other things, showed that he suffered a large stellate laceration to the left fronto-parietal area. He severed the temporal artery and likely a temporal branch of the facial area and, as a result, could not lift his left eyebrow nor close his left eye effectively. He suffered significant pain from the wound and was given strong analgesics. Mr Phillips said and was not cross-examined on this, that as a result of the injuries he suffered he is going to have further surgery in the future, namely a surgical procedure known as a "lift." Subjective circumstances 15 The applicant was born in February 1959 and was 50 years old at the time of sentence. A report from Dr Scott, a general practitioner, was tendered as was a Probation and Parole pre-sentence report. The applicant told the Judge that he broke three vertebrae in his back in October 2005 and had had two operations – the first being in June 2006 and the second in September 2008 about three months before the present offence. He testified that he was "not very well at all" at the time of the offence and was on morphine and antidepressants. In his report, Dr Scott described the applicant's lower back injury as being very painful and requiring narcotic analgesics to manage. 16 As to the applicant's subjective circumstances, the Judge said (AB 14): "The offender was born in Newcastle and went as far as Year 9 at high school, leaving school at fifteen. He worked as a storeman and as a labourer in those types of jobs over the years until October 2005. In that month he was employed by Newcastle Formwork and suffered a serious industrial accident causing fractures to three vertebrae. He has since then had two spinal operations, one in June 2006 and one in September 2008. He told me that he is on strong medication of a morphine kind and he is also on anti-depressant drugs. He was on those drugs at the time the offence occurred. He has not worked since 2005. He walks with the assistance of a walking stick and/or a back brace. A friend of his who Is a supervisor at the Newcastle Leagues Club has never seen him act in a violent or aggressive was and finds this offence out of character. A general practitioner, Dr Scott, whose report was in evidence, has treated [the applicant] in the last five years and says that because of the accident he has an injury adjustment disorder or a reactive depression. Miss Weiss told me that one of the major concerns she had on the night had been in the unpleasant circumstances that they found themselves, she was concerned about the fact that he might suffer some greater injury on his back. I accept her evidence on that issue." 17 The Judge noted the applicant's history of depression had apparently included two attempts at suicide in 2008 and 2009. As to remorse, the Judge accepted that the applicant was "very sad and upset for what he had done" but it had to be borne in mind that in the Probation and Parole report it was recorded that the applicant partly blamed Mr Phillips for what occurred and said that he only acted in self-defence. 18 At the time of the offence, the applicant was on conditional liberty. He had been convicted on 28 February 2008 of assault occasioning actual bodily harm and placed on a s 9 bond with the condition that he accept the supervision of the Probation Service. His record reveals some drug offences and an offence of knowingly obtaining a financial advantage to which he was not entitled. 19 The Judge found that the applicant was entitled to a utilitarian discount for the plea of 25 per cent. Special circumstances, being the applicant's "need for longer than usual assistance with his depression and his anger and alcohol problem", were also found permitting an adjustment to the statutory ratio between the non-parole period and balance of term: s 44(2) Crimes (Sentencing Procedure) Act. Dealing with the appeal 20 The first ground of appeal asserts that in all the circumstances the penalty is too severe. As this ground is a complaint of manifest excess, it is convenient to deal now with the second ground in which the assertion of error is, that the Judge failed to take into sufficient account and regard the applicant's ill health and subjective circumstances as existed prior to the offence and at the time of sentence. 21 The applicant submits that his special circumstances, namely his significant back injuries and subsequent disability, should have been given greater weight by the Judge on sentence. He contends that an order should have been made for periodic detention for a period equal to the non-parole period of the sentence imposed by the Judge. The applicant argues that the Judge was in error in applying the Crown's submission that "specific deterrence was extremely significant in this matter and that a full time custodial sentence was called for." 22 The Probation and Parole report before the Judge revealed that the applicant was suitable for a medium level of intervention by the Probation Service and for a periodic detention order. 23 In R v Smith (1987) 27 A Crim R 315 King CJ authoritatively considered the relevant principles whereby the health of an offender is properly taken into account on sentence. King CJ said at 317: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 24 In R v Badanjak [2004] NSWCCA 395, Wood CJ at CL (with whom McClellan AJA and Smart AJ agreed) considered at [11] that "it is only in a relatively rare case that the Smith principle is applicable." Where ill health is considered to be relevant to the determination of sentence, the extent of the mitigation is to be balanced against the seriousness of the offence: R v BJW (2000) 112 A Crim R 1. 25 It is evident from the Judge's sentencing remarks, which I have quoted at [16], that he assiduously considered all of the material before him as to the applicant's condition. He took into account that the applicant had sustained fractures to three vertebrae in October 2005, had two spinal operations, had not worked since 2005, walked with the assistance of a walking stick and or brace, had a history of depression including two suicide attempts, was on strong medication for pain relief and took anti-depressant medication. His Honour said (AB 14): "Because of his physical disabilities, I am satisfied that in serving a fulltime sentence of imprisonment he will find imprisonment more difficult than if he were younger and fitter." 26 It can readily be concluded from the Judge's remarks that he determined that the applicant's ill health was a mitigating factor. Furthermore, one of the matters justifying a finding of special circumstances was the applicant's depression. 27 In assessing the weight to be given to the applicant's ill health, his Honour was obliged to consider all of the circumstances of the case. Mr Phillips sustained serious injury to his left forehead. When he threw the glass in Mr Phillips' direction, the applicant was on a s 9 bond for an offence which involved violence. This is a serious matter of aggravation. The Judge was entitled to give more weight to considerations of personal deterrence and protection of the community because of the applicant's prior offending: R v McNaughton [2006] NSWCCA 242. The spontaneity of the offence does little to diminish its seriousness. I would reject the submission that the Judge gave too much weight to specific deterrence. When balanced against the seriousness of the offence, I am not persuaded that the Judge failed to give sufficient weight to the applicant's disabilities and depression. I would reject this ground of appeal. 28 I return to the first ground of appeal. To establish this ground, the applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v R (2005) 228 CLR 357. 29 The Judge rejected the submission of the applicant's counsel that any sentence of imprisonment should either be suspended or ordered to be served by way of periodic detention. In this Court, the applicant principally maintains that the sentence should have been periodic detention. It is settled principle that a sentence of periodic detention is significantly less onerous than a sentence of full-time imprisonment: R v Rivkin (2004) 59 NSWLR 284. His Honour correctly determined, in my opinion, that a sentence of periodic detention would not adequately reflect the objective criminality of the offence. 30 The maximum penalty for the offence is 10 years and the standard non-parole period is 4 years. The head sentence of 3 years imprisonment with a non-parole period of 18 months, in my view can hardly be described as excessive. The non-parole period of 18 months represented a ratio between the head sentence and balance of term of 50 per cent which was generous to the applicant. 31 I am not persuaded that the sentence was outside a legitimate exercise of his Honour's sentencing discretion. I would reject this ground of appeal. 32 The orders I propose are as follows: 1. Leave to extend time to appeal be granted. 2. Leave to appeal against sentence be granted. 3. Appeal dismissed. 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.