Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Butler v R [2012] NSWCCA 23 Hearing dates: 27 February 2012 Decision date: 20 March 2012 Before: Whealy JA at [1] Rothman J at [2] Davies J at [3] Decision: 1. Extend the time for leave to appeal to 10 October 2011; 2. Leave to appeal granted; 3. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - Form 1 offences - how properly dealt with when sentencing - sentence imposed pre Muldrock - reference by Sentencing Judge to R v Way - whether error identified in reference to guideline or yardstick - whether other sentence warranted. Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Dionys v R [2011] NSWCCA 272 Muldrock v The Queen [2011] HCA 39 R v Grube [2005] NSWCCA 140 R v Koloamatangi [2011] NSWCCA 288 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Category: Principal judgment Parties: Shawn Michael Butler (Applicant) The Crown Representation: H Dhanji (Applicant) F Veltro (The Crown) Martin Bowe, Solicitor (Applicant) Solicitor for Public Prosecutions (The Crown) File Number(s): CCA 2008/6448 Decision under appeal Date of Decision: 2009-07-24 00:00:00 Before: Freeman DCJ File Number(s): 2008/6448 Judgment 1Whealy JA : I agree with Davies J. 2Rothman J: I agree with Davies J. 3Davies J : On 1 December 2008 the Applicant pleaded guilty to maliciously wounding David Deakin with intent to do grievous bodily harm. Two other offences of malicious wounding in company were to be taken into account on a Form 1. 4On 24 July 2009 the Applicant was sentenced by Judge Freeman in the District Court to a non-parole period of 5 years and 6 months commencing 13 September 2007 and expiring on 12 March 2013 with an additional term of 3 years expiring on 12 March 2016. At the same time his Honour sentenced the Applicant's co-offender Darren Simpson. The facts 5The offences arise out of assaults committed by the Applicant and Simpson on three persons being David Deakin, Oliver Ashworth and Neal Ashworth on 20 July 2007. His Honour found the facts of the matter as follows: a. About 2.35 am on Friday 20 July 2007 David Deacon (sic), Oliver Ashworth and Neil Ashworth were walking with another friend in a northerly direction along Pitt Street near Martin Place in the Sydney CBD. b. At the same time Shawn Butler, Paul Helmrich and two women were walking south on Pitt Street. This group passed the victims without incident. c. The offender Simpson and Melanie Collins were proceeding south on Pitt Street about fifteen metres behind Butler and the others. As Simpson came abreast of the victims he shoulder charged one and began throwing punches. He was repeatedly claiming to be a policeman and thus having the right to do whatever he wanted. d. Oliver Ashworth and David Deacon tried to separate Simpson from Neil Ashworth. Melanie Collins yelled "Shawn" to attract the attention of the offender Butler who turned and ran back towards the victims, one of whom, he says, had Simpson in a headlock. e. At some stage before he reached the group of victims and Simpson, Butler fitted to his right forefinger what he described as a locksmith's tool. This was a small flat piece of metal shaped into two short prongs at the end but with both sides of the device sharpened. He positioned it in the manner of a signet ring with the points standing a little over two centimetres proud of his right hand. f. The Crown submits that the two offenders had reached an unspoken understanding or arrangement amounting to an agreement between them to strike and injure the victims. I find this must be so. The pleas support this. But it should be said that no agreement could have been reached any earlier. Butler had passed without any interference with the victims and the incident would not have occurred nor been contemplated but for the actions of Simpson. Thereafter there was a melee which was lasted no more than three minutes. g. The victim David Deacon described the assault upon him in this fashion: They both came towards me. I saw Butler doing something with his left hand, moving his fingers about and lifting his left arm up. Simpson was looking very angry. I backed off and put my hands up and said 'I don't want a fight, fuck off'. I recall saying this three or four times. Simpson ran straight at me and crash tackled me. I hit a car, I think it was red. Simpson had me pinned up against the car. I felt my arms down by my side and he had me in a bear hug, I couldn't move. Butler came at me and swung at me with his left hand and got the right hand side of my face. The right hand of my face hit the bonnet of the car. I closed my eyes and he really hit me for a six. Within a second I felt another blow to the left hand side of face when I was on the bonnet, it was a really heavy hit. I stood up and felt blood spraying and gushing about 6 feet away out of my lip area on the right hand side. I also felt the left hand side of my face bleeding. I put my hand over my lip where the blood was spraying out everywhere. h. The wound to the right side of David Deacon's face was a laceration which extended from below the right ear across the face and through the bottom lip. The wound to the left cheek of David Deacon went through to the bone and extended from the left ear to the chin, cutting a number of arteries. The facial artery was severed in a number of places and he lost about one and a half litres of blood at the scene. Mr Deacon is left with significant facial scarring and he said, in his victim impact statement, that he was reminded almost every day by people questioning him about the origins of those scars. He detailed, as one might expect, his initial shock, his continuing fear or at least nervousness whenever he goes out, and his ongoing bewilderment as to the reasons for such savagery. i. The second victim, namely Neil Ashworth, pulled Butler away from David Deacon. He said that "Butler turned and tried to get me. I moved back. I noticed he had these little shiny things in his hands. This guy hit me between my ear and my crown. I did not realise at the time he had cut me, it felt like a punch at first." j. The blow delivered by the offender Butler caused a 6 centimetres wound which penetrated through the scalp to bone. During this assault Neil Ashworth also sustained a blackened left eye, lacerations on his neck and scratches and bruises on his body. In his victim impact statement Mr Neil Ashworth recounts his loss of confidence to defend himself in any awkward situation. He fears confrontation, he is excessively concerned for the safety of his brother and friends, and he tends to panic in the event of there being any mild confrontational situation. k. The remaining victim, Oliver Ashworth, was punched in the back of the head. He was knocked forward and dazed by the blow. He then described being struck by the offender Butler in this way: I felt a punch come up from my right into my left cheek bone. It was with a lot of force and it felt like a full force punch. I had hold of my motor scooter helmet in my right hand. I felt another blow to the left side of my head above my ear. This was a really heavy full force punch as well and again I did see what exactly it was that hit me. The blow did not knock me over but I was leaning over trying to protect myself as it was happening. l. He described how his next recollection was lying on the footpath holding his face because he felt as though his cheek bone had collapsed from the pain. There was a lot of blood. His brother and he were both holding onto his face to apply pressure to stem the bleeding. He sustained a three centimetre laceration to the left temple region that severed a small artery and a deep laceration to his left cheek which divided the intraorbital nerve. In his victim statement Mr Oliver Ashworth detailed the numbness across the left side of his face which continues and he is left with scars and the problem of pressure in his ears which means that he now suffers extreme pain through pressure change, such as being a passenger in a descending aircraft. This is a particular concern since his work requires him to fly interstate quite often. He recorded that the wound was so deep that the flesh had hewn to the bone requiring lengthy and extremely painful physiotherapy to regain some facial function. He, too, speaks of the extent to which his life has been changed by this assault, causing a loss of self confidence, generating an ongoing feeling of helplessness and an increased level of alertness whenever he is out. He, too, is reminded frequently of his facial scarring by questions and comments, and each time he says the mention of the scar takes him straight back to the incident and brings up foul memories. m. All of the victims were obviously at a loss to explain and consequently to understand the reason for them being set upon and seriously injured. n. The registered number of the car in which the offenders drove away was noted and the registered owner named Simpson as being the driver at that time. o. Simpson was arrested and charged on the afternoon of Friday 20 July 2007. He then took part in a recorded interview which was notable for the absence of information contained therein. He did not see any weapons, blood or injuries. He did not recall how the fight started. He provided false names for Butler and the man Helmrich and said that other people must have perpetrated the injuries upon the victims. He was charged and admitted to bail then rearrested on 23 July 2007. p. The Applicant went to New Zealand after the assaults, but he says that this was in ignorance of the outcome and that he was in fact there for the purpose of planning his impending wedding. He returned to Australia when he ascertained that the police were looking for him, and he surrendered himself to police on 13 September 2007. Extension of time 6The Notice of Application for Leave to Appeal was filed only on 10 October 2011. A Notice of Application for extension of time was also filed on 10 October 2011. That Notice was supported by an affidavit from the Applicant's solicitor. The affidavit deposed to the fact that the Notice of Intention to Appeal was filed on 21 August 2009 but that the solicitor had not then been instructed by the Applicant. The Applicant had applied for Legal Aid but that was ultimately rejected on 24 June 2010. 7The Applicant then sought to retain and brief private practitioners. This involved obtaining advice from Senior Counsel in relation to the appeal. 8Whilst it does not appear to me that all of the delay has been adequately explained, the Crown does not oppose the extension of time for appeal. In the absence of any prejudice to the Crown, I consider that the extension of time should be granted. Grounds of appeal 9When the appeal was first filed the first ground was as follows: 1. The learned sentencing judge erred by failing to properly apply Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the standard non-parole period provisions) in sentencing the Applicant. Submissions in support of that ground were then prepared. 10On 5 October 2011 the High Court delivered judgment in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154. That led, in due course, to that ground being abandoned and an application being made to rely on an alternative ground also out of time. 11The grounds upon which the application was ultimately argued were these: 2. The learned sentencing judge erred in the manner in which he took into account the two offences on the Form 1. 3. The learned sentencing judge erred in the manner in which he had regard to the standard non-parole period provided for the offence. Ground 2: The learned sentencing judge erred in the manner in which he took into account the two offences on the Form 1. 12When referring to the matters on the Form 1 the Sentencing Judge said this: Butler's culpability is high. Moreover, after seriously injuring David Deacon he then prosecuted the attack on the Ashworth brothers. Whilst these assaults are to be taken into consideration on a Form 1, they do not thereby disappear. The fact that he attacked the other two, after doing such damage to David Deacon, increases his overall culpability and this should be reflected in a sentence more stern than would be applicable for the attack on a single victim. For that reason the extensive case review provided on his behalf is not a completely reliable guide. Those cases, in the main, referred to malicious wounding involving a single victim. 13The Applicant submitted that by using the words "increases his overall culpability" the Judge was in error in according greater seriousness to the primary offence rather than simply using the Form 1 offences to increase the sentence. The Applicant points also to what his Honour said at the end of the quoted passage to suggest that his Honour regarded the primary offence more seriously by reason of the Form 1 offences. This was said to be evident from his Honour's contrast of cases of malicious wounding involving a single victim with the primary case. It was submitted that the primary offence properly involved only a single victim because the other injured persons were the subject of the Form 1 offences. 14The manner in which offences on a Form 1 are to be taken into account was explained by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] as follows: The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 15The Applicant pointed to the lack of precision in the Sentencing Judge's language to suggest that he was wrapping up the Form 1 offences with the primary offence rather than making a strict demarcation of a sentence for the primary offence and then adding weight to that sentence having regard to what was contained in the Form 1. 16The Applicant further submitted that because the Sentencing Judge found the Applicant to have good prospects of rehabilitation the additional weight that could be given to personal deterrence was very limited. 17In my opinion no error is demonstrated by reason of his Honour's remarks or the approach he took to the sentence based on the Form 1 offences. His Honour made it clear that the Form 1 offences should be reflected in a sentence more stern than would be applicable if only the primary offence was being considered. Similarly, in referring to the other cases his Honour was simply making the point that the sentences in those cases were for the commission of a single offence where no regard was required to be given to other offences, particularly other similar offences, on a Form 1. 18There is no error in increasing the sentence because of the Form 1 offences. Simply because the Applicant was considered to have good prospects of rehabilitation, issues of personal deterrence were not removed from consideration, nor did it make the weight that could be accorded to personal deterrence very limited. 19Moreover, in the present case, retribution was a relevant consideration where the Form 1 offences were serious offences even though they were committed in close proximity to the primary offence. They were, however, not a necessary part of the commission of the primary offence since each of the offences was committed consecutively (see Dionys v R [2011] NSWCCA 272 per Hoeben J, with whom McClellan CJ in CL agreed at [63]-[66]; R v Grube [2005] NSWCCA 140). 20This ground fails. Ground 3: The learned sentencing judge erred in the manner in which he had regard to the standard non-parole period provided for the offence 21The Sentencing Judge sentenced the Applicant before the High Court gave judgment in Muldrock . Somewhat presciently his Honour dealt with the standard non-parole period in this way. 22First, he said: It is necessary to bear in mind, as well, the fact that Butler faces a charge for which the maximum sentence is twenty-five years and a standard non-parole period of seven years is prescribed. I accept of course that on the authority of Way's case the application of the standard non-parole period is not automatic where there has been, as here, a plea of guilty. Nonetheless, the standard non-parole period remains as a guideline or yardstick. 23Secondly, his Honour said nothing about the objective seriousness of the offence, nor did his Honour engage in the two stage process mandated by R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 but rejected in Muldrock at [28]. Of course, whether a court is now required or permitted to classify, or is prohibited from classifying, the particular offence by reference to low, middle or high range of objective seriousness remains in doubt: R v Koloamatangi [2011] NSWCCA 288 at [19]. The High Court did not suggest, however, that a conventional assessment of objective offending was to be avoided. 24The basis of complaint in relation to this ground is that, because the Sentencing Judge did not have available to him the decision in Muldrock , the sentencing miscarried. In particular, the Applicant submitted that because the Sentencing Judge accepted the authority of Way's case his use of the standard non-parole period as a guideline or yardstick, in accordance with how Way's case approached standard non-parole periods, was an error. The Applicant submitted that the High Court's approach meant that it was a different guideline or yardstick to which regard should have been had. 25The yardstick was said to have changed in two ways - first, because of the change in the approach to the assessment of objective circumstances in that they are now to be assessed without reference to matters personal to a particular offender or class of offenders but wholly by reference to the nature of the offending; and secondly, that the standard non-parole period was previously mandatory unless factors could be found to depart from it. The Applicant's submission was that where those matters had fundamentally changed any consideration of the standard non-parole period as a guideline or yardstick in accordance with Way's case must be infected with error. 26In my opinion no error has been shown in relation to the way the Sentencing Judge approached the standard non-parole period. Merely showing that a sentencing judge sentenced pre- Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick. 27In the present case the remarks of the Sentencing Judge suggest that little can be pointed to as constituting error. The Sentencing Judge referred both to the maximum penalty and the standard non-parole period as two factors to be considered ( Muldrock at [27]), did not engage a two stage process to sentencing ( Muldrock at [28]), and did not point to any factors to justify any departure from the standard non-parole period even used only as a guideline or yardstick. To suggest that the words "yardstick" or "guideline" might now carry some different emphasis or meaning by reason of matters in Muldrock is to apply an overly analytical approach to the use of those terms. 28Even if, as the Applicant submitted, those words now bear a different meaning as a result of the decision in Muldrock , they do so for two reasons irrelevant to the present case - first, because the Sentencing Judge did not make reference to objective circumstances and secondly, because he did not refer to the mandatory nature of a the standard non-parole period nor did he consider factors showing a need to depart from it. 29This ground also fails. Section 6(3) Criminal Appeal Act 1912 30Even if I had considered that the Sentencing Judge fell into error I do not consider that any other sentence than was imposed was warranted in law. The assault on the three victims was a particularly vicious one. A number of matters suggest that the sentence imposed by his Honour was entirely appropriate. 31First, even if the Applicant initially believed that the co-offender Simpson was being attacked by the victims, Deakin said to the offenders, before the Applicant struck the first blow, that he (Deakin) did not want to fight. At the time the Applicant struck the first blow Simpson had Deakin pinned up against the car in a bear hug unable to move. 32Secondly, the Applicant fitted to his right forefinger the locksmith's tool before he struck any of the victims. It was a sharp device which the Sentencing Judge found was clearly sufficiently serious to wound the victims, and did seriously wound them. 33Thirdly, the Applicant, having struck Deakin on the right side of his face which caused blood to spray and gush out for some distance from his lip area on that side, then proceeded to strike him again on the left side of his face causing a serious laceration down to the bone cutting a number of arteries. This blow certainly involved the use of the locksmith's tool whilst the victim was being held by the co-offender. 34Fourthly, when the second victim, Neal Ashworth, tried to pull the Applicant away from Deakin, the Applicant turned on Neal Ashworth and delivered a blow that caused a six centimetre wound that penetrated through the scalp to the bone. Then the Applicant attacked the third victim Oliver Ashworth by punching him in the back of the head, an action that suggests the blow was not struck in any form of self-defence. 35The three victims have all sustained permanent scarring to their facial area. 36Finally, these offences were committed only two days after the Applicant had been placed on a two year section 9 bond for common assault where it would appear drugs and alcohol had been involved. This is so, because one of the conditions of the bond signed by the Applicant was that he obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation of the Probation and Parole Service. In my opinion, the fact that there was a stay in relation to that bond by reason of an appeal lodged by the Applicant makes little difference. Although the Applicant was not on conditional liberty by reason of the stay of the bond, the Sentencing Judge was entirely correct in taking into account the fact that the Applicant had been placed on such a bond for another offence of violence, and by virtue of that bond it had been both drawn to the attention of, and accepted by, the Applicant that he needed to address his drug and alcohol problems. 37It was very much to the Applicant's advantage that the Crown was prepared to accept the plea to the primary offence with the assaults on the other two victims being merely put on a Form 1. 38All of these matters lead to the view that, even if error had been shown, no other sentence would have been warranted. Conclusion 39The orders I propose are these: (1) Extend the time for leave to appeal to 10 October 2011; (2) Leave to appeal; (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. Decision last updated: 20 March 2012